by Matt Barr

Specter may have a good idea, but don't ask him

Sen. Specter had an op-ed run in the Washington Post yesterday ostensibly in support of a bill he's hawking to mandate television coverage of Supreme Court proceedings. I continue to believe Congress has the power to do this, cf.:

I think Congress certainly can grant media the right to televise or video record proceedings. The judicial power of the United States is vested in the Supreme Court, and Specter's bill lets the Justices bar cameras in a particular case where that judicial power is implicated. The judicial power of the United States doesn't seem to me to include the power to bar cameras.

One commenter wonders whether Congress couldn't also force the President to televise cabinet meetings. But how and with how much candor the President conducts meetings is a deterimination based on the exercise of executive power, which is vested solely in the President. I think the Court could reasonably determine -- that is to say, we and Congress would defer to this determination if made -- that its judicial power was best exercised when oral arguments are held in private. But proceedings are already open to the public, and indeed it's been English and American tradition forever that oral arguments in appellate courts are open to the public.

And I still don't feel qualified to weigh in on the wisdom of doing so. But Specter's piece yesterday is unpersuasive. I think this may be because it's not really trying to argue in favor of the bill, but to poke and prod the Court.

Leading with the travesty of there not being nearly enough television coverage of the Bush v. Gore decision in 2000, Specter writes:

[I]n a city where the piercing eye of television examines almost everything, there were no cameras covering this momentous event, just as there is no televised coverage of any proceeding before the justices.

You will read on in vain for an argument why television "examin[ing] almost everything" is a good thing, and why if almost everything, then everything is true. Specter alludes to a 1980 decision opening trials to the press, arguing "the Supreme Court itself articulated the rationale" for televising its proceedings. No, it didn't. The right to a public trial is in important ways different from a right to have your appeal covered -- even setting aside the fact that the Supreme Court already allows the kind of press coverage at issue in Richmond Newspapers v. Virginia. It's at trial where a defendant is in "jeopardy of life or limb," and where potential government mischief needs the most deterrence. Insofar as the state can't appeal an acquittal, criminal appeals are always attempts to reverse a conviction obtained in a public trial. (Press access to civil cases wasn't at issue in Richmond Newspapers, another reason it doesn't "articulate the rationale" for a blanket rule that all proceedings should be televised. Specter, a former federal appellate advocate, knows this.)

Messrs. Justice Kennedy and Thomas recently testified against the bill in a Congressional hearing.

The two justices insisted that Congress should mind its own business and respect the court's autonomy, just as the court has respected Congress's autonomy.

But does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

The Court also unanimously played the world's smallest violin as accompaniment to Specter's argument. But meanwhile, Specter has egregiously misrepresented each case he cites. U.S. v. Morrison involved a provision of the Violence Against Women Act that allowed victims of gender-motivated violence to sue under federal law. The Rehnquist Court said the provision exceeded Congress' enumerated powers. It said -- correctly, I bet Specter would agree -- that regulation of noneconomic activity on a theory of cumulative economic impact (e.g., violence against women impacts the American economy) would be almost carte blanche for Congress to pass any law it pleased. It could prevent me from mowing my lawn because emissions from lawn tractors impact the American economy. It could mandate how and how often I brush my teeth, water being economically important, overall. The Court also said that under the Fourtneenth Amendment, Congress may not regulate private conduct.

Hanging the result on the congressional "method of reasoning" and insufficiency of the record is misleading. So too, arguably, is calling the federal jurisdiction provision of the Violence Against Women Act "legislation protecting women against violence" -- when you sue in federal court, you've already been a victim of violence. Would Specter, if he spoke English as a first language and not Congresspersonese, say that giving me a towel to dry off with protects me from getting wet?

In the second case, Specter is referring to University of Alabama v. Garrett, which dealt with whether suits against states were constitutional under the Americans With Disabilities Act. That is whether one, small class of defendants was immunized from suit under the Eleventh Amendment. Painting this as "a law prohibiting discrimination in employment" that the Court capriciously struck down is also highly misleading. Specter's line about "13 congressional hearings" is lifted directly from Mr. Justice Breyer's dissent, raising the question why if 5-4 decisions are as bad as Specter paints them to be relying word for word on the argument of four Justices is better.

Pulling back from the specifics about which Specter is being dishonest, examine the premise. Would Specter argue that the Supreme Court striking down an act of Congress that criminalized speech in support of liberal Republican Senators from Pennsylvania was "disrespectful" of Congress? Of course not. In order for his argument about "respect" to be persuasive you would have to acknowledge that not every case is as easy as that one, and draw a line somewhere separating where we're ok with the Court striking down a law and where we're not. I can't think of a better one than 5-4, and more importantly, Specter doesn't suggest one.

Specter continues:

If the public understood the extent of the court's power, perhaps the electorate would insist that Congress do its job on a variety of issues -- including desegregation, Guantanamo Bay detainees, eminent domain and defendants' rights -- instead of punting to the court.

So the electorate is not insisting that Congress act and is fine with their "punting" to the Court because... it doesn't understand how powerful the Court is? This doesn't make any sense. I would think the preference Specter identifies on the part of the electorate for the Court deciding things, assuming it exists, is an acknowledgment that the Court is very powerful indeed -- and certainly better equipped to answer these thorny issues than Congress is. It definitely doesn't illustrate to me that the electorate dosn't understand how powerful the Court is.

Or perhaps the public would insist that our presidents nominate justices with sensitivity to these matters.

Like Bush v. Gore, Specter thinks the nomination of Supreme Court justices doesn't get enough media attention to ensure the people know what's going on. I have to disagree there, too. But again, the point throughout doesn't seem to be that TV cameras belong in the Court, but rather that the Court are a bunch of doodyheads. Specter fails to convince me of that, too, by this piece.

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