Can Congress Force the Supreme Court’s Hand on Cameras in Court?

Dec 6, 2011 4:15pm

Congress is once again attempting to pass legislation to require televised Supreme Court proceedings, despite the extreme misgivings of many members of the court. A Senate judiciary subcommittee hearing today reignited an old separation of powers debate: Does Congress actually have the authority to pass such legislation?

The latest attempt is called the Cameras in the Courtroom Act of 2011, introduced by Sens. Dick Durbin, D-Ill., and Charles Grassley, R-Iowa.

Justice Anthony Kennedy has been one of the most vocal critics of such congressional attempts. He told Congress in 2008, “our dynamic works.”

“The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic,” he said. “If you introduce cameras, it is human nature for me to suspect from time to time that one of my colleagues is saying something for a sound bite. Please don’t introduce that insidious dynamic into what is now a collegial court.”

Sen. Amy Klobuchar, D-Minn., chaired the hearing today and argued that public access is severely limited even though the court releases transcripts and audio recordings of the arguments. Klobuchar noted that the court has very few seats for those who want to witness history and said, “it shouldn’t be a once in a lifetime experience to see the court in action.”

But Sen. Jeff Sessions, R-Ala., disagreed and said the current system is working well. “If it ain’t broke, don’t fix it, ” he cautioned.

Sessions is concerned about pushing legislation that the majority of the court opposes. “We should take very serious [the court's view] and respect it,” he said. “It’s their domain. ”

Witnesses included Maureen Mahoney, one of the finest Supreme Court advocates in the country, who said “there is a serious reason to believe that legislation overturning the Supreme Court’s policy would be unconstitutional.”

She said the text of the Constitution and the doctrine of separation of powers suggest that such legislation wouldn’t pass constitutional muster.

But Sen. Richard Blumenthal, D-Conn., challenged Mahoney. He said the legislation would ultimately be upheld by the Supreme Court because it comes down to a procedural question regarding the administration of the court.

Thomas Goldstein, another highly respected Supreme Court advocate, agreed that ultimately the legislation would most likely be upheld. But he cautioned Congress not to force the court’s hand. He said the court is moving in the direction of eventually allowing cameras and pointed to recent pilot programs in lower courts on the subject, as well as the court’s decision to increase access to transcripts and audio recordings.

Goldstein said Congress should not attempt to pass the law and potentially ignite a constitutional show down between the two branches of government. He praised the justices, adding, “they are practically the only people in Washington trying not to get on camera.”

Former Sen. Arlen Specter, D-Pa., making his first official return to the Senate as a witness, testified that he had worked on the issue for 25 years.

Outraged about some Supreme Court cases that “eroded congressional authority,” Specter urged Congress to push through the legislation to make the court more accountable to the public. He pointed out that the health care case will touch every American and ought to be easily accessible to a wider audience.

Opponents of the legislation argue that the court is concerned that cameras would change the way lawyers and judges present their arguments in a way that would ultimately hurt the court as an institution.

Sen. Klobuchar said she thought the court is above such concerns. “I was trying to picture Ruth Bader Ginsburg turning into Judge Judy,” she joked. “It’s not going to happen.”

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