Can’t the Supreme Court Just Say No to Cameras?
posted by Dave Hoffman
It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:
‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”
Two questions.
(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,
(2) What ifthe Supreme Court just says no? The Marshall of the court reports to the Chief, not to the President or the Congress. What is the Coult were simply to decide, as a body, that it didn’t feel bound by another branch’s wishes on how to conduct its proceedings? Obviously, this would never actually happen. But imagine a different case, where the Congress prescribed wig-wearing? Or how long arguments would last? Or brief length or content? I recall a Larry Tribe con law exam in which the Congress wrote a law the required the court to decide its constitutionality in a matter of days. That struck me as unlikely to survive scrutiny. Similarly here, there’s a plausible separation of powers argument that the Congress doesn’t have the right to tell the Court how to run its house. That’s precisely what Mike Dorf argued in this column, and it’s surprising to me that so few mainstream journalists have picked up the objection. (But see this Scotusblog discussion.) Basically, if I were the Court and I didn’t want to be on TV, I’d consider telling Congress to go pound sand. They don’t have an army either.
February 10, 2012 at 1:40 pm
Posted in: Constitutional Law, Supreme Court
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Responses (3)
Joe - February 10, 2012 at 1:52 pm
Congress tells the Court “how to run its house” in various respects. Can the USSC decide two justices are a quorum? That they will not meet at all? It’s something of a balancing test & the “decide in a few days” rule points to that. What if the USSC decides to keep all arguments secret?
I also don’t know what “due process” right is present in a USSC argument if the press is there and audio is provided.
Anyway, it’s a bad idea for them to force the issue. As a matter of brunt power, seems a hard call to say Congress doesn’t have the power.
Howard Wasserman - February 10, 2012 at 11:36 pm
Is disobeying a law requiring broadcasting an impeachable offense? There are also sorts of nice ways to game out the constitutional possibilities. Ultimately, this is all about political solutions.
Andrew MacKie-Mason - February 11, 2012 at 7:52 pm
Isn’t there also a plausible threat that Congress would use its power of the purse to punish the Court if it refused to obey the law regarding cameras? Congress can’t cut their salaries, but it can take away their nice building, not pay the salaries for any clerks or other support staff, not give the Court money for heating during the winter…
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