The Volokh Conspiracy

It strikes me that there could be a due process objection asserted by a litigant. That doesn't speak to whether the Court may exclude cameras on its own prerogative, but it does speak to whether they would ultimately be allowed. This isn't my cup either, so I don't know way due process rights on appeal play out in the jurisprudence.

Apologies for not directly answering the question, but Congress should figure out how to make potential viewers read the briefs before forcing cameras in to offer a skin deep view of the decision-making process. Catering to lazy media and their consumers shouldn't be on the agenda.

But maybe concern about grandstanding is overblown and no one will really watch.

to paraphrase the chief: "justice souter says 'over my dead body.' and we all like justice souter."

I'm not really up on all this either, but doesn't the Supreme Court have a lot of discretion over procedural issues? If so, could cameras be construed as procedural and thus within the Court's purview?

I haven't paid that much attention to the issue, but how has the issue of TV cameras in DCts and AppCts been handled? Edict from the SCt? Edict/rules of procedure from a Judicial Conference approved by Congress? Other?

Since oral hearings are taped and rebroadcast using the audio spectrum, should videotaping and rebroadcast using the EM spectrum be any different?

Does Souter pick his nose or something?

"For example, Congress determines the number of Justices..."

Can Congress make the number of Justices zero? Zero is a number.

jgshapiro,

i assume the press would have standing to sue.

Orin: The question is actually parallel to the Commander-in-Chief questions that we've been discussing. It's not sufficient to ask whether decisions as to television are "within" the "judicial power" mentioned in Article III. Presumably they are -- the Court has vast constitutional authorities to set its own rules, especially for procedure and the operation of the courtroom, just as it has constitutional authority to establish rules of evidence and procedure for the rest of the federal judiciary. But the difficult question is the extent to which that constitutional power is defeasible by statute. (By analogy, the President can engage in electronic surveillance for foreign national security purposes in absence of statute, but that doesn't answer whether FISA is a permissible limit on that authority.)

Usually, of course, the answer is "yes, statutes control." Congress can establish rules of, e.g., procedure and evidence that can and do trump whatever rules the Court had established pursuant to its Article III power.

But there is some, vaguely defined "core" of judicial power that is indefeasible by statute -- some things that are presumably so central to the very functioning of the Court, or so constitutive of what it means to exercise the judicial power -- that the judiciary itself must be afforded unbounded disretion to make the call. (In Loving, the Court uses the term "central prerogatives.") That's the lesson of Plaut, anyway. (And also Klein, to the extent it can be read to suggest that Congress cannot establish certain irrebuttable presumptions as rules of evidence.)

So, for instance, there is currently an academic (in both senses of the word) debate raging about whether Congress could regulate the Court's use of stare decisis. Similarly, what about rules for length or structure of briefs to the Court? Length of oral argument? Dissents in opinions? Procedures at the Court's conferences? Citations to international law? Etc.

So what about Court transparency rules, as in the television example? My view would be that it's well within Congress's power, just as Congress has broad authorities to require Executive branch transparency. But it's highly contested, of course, and it's not clear to me how one would best resolve the debate, which would probably turn on which historical examples of statutory Court rules one thought most analogous.

In the olden days, the rationale that was often given for barring cameras from the courtroom is that cameras (and their operators) were obtrusive would "disrupt" the proceedings.

Today, cameras can be so small, that they could be barely visible.

The Supreme Court's proceedings are supposed to be open to the public.

The Court's refusal to allow extremely tiny cameras to broadcast their proceedings to the public just shows how much contempt the Supreme Court has for the principle that its proceedings be public.

“Wouldn't it be constitutional for Congress to pass a bill saying that the compensation of U.S. Supreme Court Justices will NEVER increase …”

That wouldn’t work because the court would invoke section 1 of Article III claiming that inflation had effectively diminished their compensation. One state court (I think Michigan) did exactly that. They ordered the state treasurer (without a hearing) to increase their salaries or suffer contempt. I don’t know how the issue was eventually resolved.

The Justices should form a union, or better yet join one of the existing government unions.

Could you imagine a work slowdown at the SCOTUS level. "I see you want us to fast track this appeal concerning the 2000 presidential election - we're very sorry but it doesn't look like we'll be able to get to it until sometime in 2003. Good luck figuring out what to do meanwhile."

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On a more serious note, is there any statory command that oral arguments be held at all?

Kovarsky, if Congress passed such a law and the Supreme Court did not subsequently obey the law, I would assume that suing would probably be a waste of time. I'm pretty sure how the Supreme Court would thus answer the Article III question.

M. Lederman,

Really good analysis. I think the anlogy to transparency issues re: the executive branch is especially apt. Do you have any other case cites/law review cites to SOP issues between the SCt and Congress, esp. issues involving their "central prerogatives"?

Roger Schlafly:

Souter once said that he was sometimes televised in state court, but every time he saw himself on the evening news he looked like an idiot.

Quite possibly because the evening news carefully picked the footage that made him look like an idiot. The media is not a dispassionate and carefully neutral business; it will pick and choose the footage that supports its editorial line. Moreover, go to YouTube and search for "Scalia"; you will find at least a couple of snippets from recent speeches that have been taken out of context and are described (and carefully edited) as showing Scalia saying completely the opposite to what he's actually saying, in context. Televise oral arguments, and you're going to get a lot more of that. The idea that televising the court will inform the public seems shockingly naive, and I'd add that this isn't even a matter of first impression. The threshold question is, on balance, has C-SPAN helped and improved the quality of Congress' work? (If you think it has, you evidently missed the Roberts/Alito hearings). And if you don't think it has, why would you assume it would work any better in the court?

bradleyjg

On a more serious note, is there any statory command that oral arguments be held at all?

That'd be the kicker, wouldn't it? "Okay, we accept that you, the Congress, can require us to allow cameras into oral aguments. On an unrelated matter, we have decided that henceforth, all cases will be decided on written briefs alone."

The Constitution explicitly states that "the Judicial Power of the United States, shall be vested in one supreme Court," Article III, Section 1, and if the Constitution vests the judicial power in the Court then Congress cannot take it away.

Is this the "Unitary Judiciary" theory? This wasn't given out at the last FedSoc convention, unless it was explained in code.

Isn't it an incident of the role of the judge that s/he has ultimate control over the courtroom?

I think SimonD is right, and that any "core judicial power" would have to include this.

Try some hypos. Can the Congress require the justices to wear pink robes on the bench? If not, why not?

AnonVCfan writes:

Is this the "Unitary Judiciary" theory? This wasn't given out at the last FedSoc convention, unless it was explained in code.

Aren't there dozens of Supreme Court cases recognizing this, starting with cases in the Marshall Court era? I wasn't trying to say anything new -- I thought I was just recognizing the centuries-old consensus. Was I wrong?

judging by some of his opinions, like Kelo, entirely plausible.

DiverDan: Please be aware that Justice Souter did not actually write an opinion in Kelo.

If Congress were to pass such a statute and the Supreme Court said it was unconstitutional, is there really any court that would find in favor of Congress? Who would have standing to sue? The media? And, who would they be suing? The Supreme Court? The Chief Justice in his official capacity? What happens if the case goes from District Court to Court of Appeals? It can't be brought to the Supreme Court, can it?

Although the thought of NBC, CBS, CNN, MSNBC, ABC, Fox, et al v. Supreme Court of the United States and John Roberts in his official capacity as Chief Justice of the United States being argued at the Supreme Court is mildly humorous, to say the least. Does that mean we'd get the Solicitor General arguing on behalf of the justices to the justices themselves? Obviously, in theory, the justices would have to recuse themselves, but what happens when all the justices have to recuse themselves? Do they create some "super panel" composed of Senior Judges from the Circuit Court?

I don't see something like this happening. As much as the 9th Cir. and 2d Cir. may disagree, I think it's obvious that either would rule in favor of the Supreme Court. Is there really a court that would find against the high court? Or am I wrong in thinking that the lower courts would respect the Supreme Court?

E Reed asks

How would SCOTUS declare the law unconstitutional? Would the individual Justices even have standing to challenge the law? Could SCOTUS even hear the case?

There's at least one example of such a legal ouroboros:

This case presents the perhaps unprecedented situation of a court, as litigant, petitioning itself, as court, for relief.

In re Skupniewitz (7th Cir. 1996)

I suspect we may make progress toward an answer by looking at the converse of the question asked: could Congress ban the use of cameras in all instances? Looking at this question, in light of the question actually asked, seems to point to an answer: banning, or requiring, courtroom cameras in all cases would probably be unconstitutional, for there may be instances where Due Process, or privacy, or some other constitutional right, demands that cameras be banned, or, conversely, that cameras be allowed. Therefore the answer would seem to be that camera laws would be constitutional in application because the Court - exercising the Judicial Power - could still determine that other statutory or constitutional rights (or courtroom decorum) trump the camera law in a particular case. Thus, the Court's Judicial Power would overcome any statutory command to the contrary whenever it is deemed necessary to protect certain rights, or to maintain courtroom decorum, et cetera. Whenever the Court does not determine that the case at hand does not demand a result contrary to the camera statute, then the statutory rule would apply by default. Thus, the statute would not be unconstitutional on its face so long as judges retain their inherent discretion to control the courtroom and protect litigants' rights.

"Can Congress make the number of Justices zero? Zero is a number."

There must be a Chief Justice.

With how expansive the court has read the commerce clause recently, I don't see why not that cameras are inevitable. I mean seriously who would watch Judge Judy when you can hear verbal smackdowns by Chief Justice Roberts, or Justice Thomas on mid afternoon tv. There is serious money to be made in this business.

Note: I am seriously joking in the above paragraph.

Furthermore, they could not "make" the number of Supreme Court Justices zero through any other power besides the impeachment power. They could statuorily downgrade the number of Supreme Court Justices, but what that would do is simply prevent the President of the United States from appointing to fill the next vacancies, rather than decommissioning any of the Justices.

Just wondering -- If Congress can order the Court to televise its proceedings, can it also order the Court to conduct oral arguments only in the basement men's room of the Capitol between 2 a.m. and 3:23 a.m. on alternating Sundays in February and that all of its opinions be published in pig latin?

My point is, just how far can Congress go in directing how the Supreme Court conducts itself?

"For example, Congress determines the number of Justices..."

Can Congress make the number of Justices zero? Zero is a number.

Reminds me of an old Russian Jewish joke.

Two Jews go to a rabbi and one asks: Rabbi, is "white" a color? Rabbi says: Of course. He then asks again: Rabbi, is black a color? Rabbi: Of course. Then the guy turns to the second person and says: See, I told you I sold you a COLOR TV.

Just wondering -- If Congress can order the Court to televise its proceedings, can it also order the Court to conduct oral arguments only in the basement men's room of the Capitol between 2 a.m. and 3:23 a.m. on alternating Sundays in February and that all of its opinions be published in pig latin?

Talk about [really bad pun] heasay [/really bad pun]

Aren't there dozens of Supreme Court cases recognizing this, starting with cases in the Marshall Court era? I wasn't trying to say anything new -- I thought I was just recognizing the centuries-old consensus. Was I wrong?

I apologize. I meant this somewhat tongue-in-cheek. The point I meant to make was a much less articulate and thoughtful version of what Prof. Lederman says in the thread. I also thought, as Prof. Kerr did, that the "judicial power of the United States" was mostly about deciding cases or controversies, and that, whatever it is, it is not entirely clear that that phrase encompasses unchecked power to dictate the level of public access to court proceedings.

While very miffed by the publication of the "May it Please the Court" videos, the Supreme Court fairly rapidly allowed the publication, and eventually allowed oyez.org to post current arguments.

I believe, that the dead body statements would not survive an actual Congressional mandate. The nine might argue against legislation, but they'd take the medicine.

Although judicial salaries cannot be lowered, certainly Congress can cut funds for law clerks, or for other staff, or for that matter even for electricity and maintenance in the courthouse itself. Or Congress can banish the Court from D.C. to a much less desirable place, say Billings, MT (with all due respect to Montana).

I doubt Congress really wants decade-long delays in the Supreme Court's docket. In the overall scheme of things, Congress might like the idea of televised Supreme Court hearings (though I can't imagine why) but it's hard to see Congress ever caring enough about the issue to really make a fight out of it. I just don't think congressmen and senators are being besieged with letters demanding that Supreme Court proceedings be televised.

SimonD
The threshold question is, on balance, has C-SPAN helped and improved the quality of Congress' work? (If you think it has, you evidently missed the Roberts/Alito hearings). And if you don't think it has, why would you assume it would work any better in the court?

I could not agree more. I work in D.C., so I've visited the House and Senate floors. Usually, it's one Senator or Member grandstanding in front of the cameras in order to get a soundbite on the network news. Result? All of the real legislative work gets done in committee; nothing gets done on the House or Senate floors. The irony is that adding television cameras has made the legislative process less open to the public.

And let's be honest about the reason why news organizations want to add TV cameras. They don't care about "opening up the Court to the public." They want ratings. So you'll have massive news coverage of cases on hot-button issues (abortion, affirmative action) and nothing else? I can just see it now. . .

KATIE COURIC: Today the Supreme Court heard arguments on partial-birth abortion. I don't understand all this legal stuff, so I'm just going to ask my Supreme Court correspondent which Judge sounded the angriest? Tom?

TOM: That's right, Katie. I think Justice Scalia sounded really mad. Justice Kennedy asked some questions about, uh, substantial due procedures, or something like that. I forget. Then I think one of the lawyers said something about the Third Amendment or something.

KATIE: Wow, sounds like an exciting day at the Court. Now onto a story about a cute little bunny rabbit. . . .

A couple of commenters asked upthread whether the Justices would have to recuse themselves. My first thought was that this would seem to be the sort of situation where the rule of necessity would apply, see United States v. Will, 449 U.S. 200 (1980). But giving the case a quick glance, however, although it wasn't applicable in Will (because in that case, involving judicial pay, all federal judges were deemed to suffer from an identical interest in the case), the court noted that 28 U.S.C. § 2109 provides (as it still seems to) that:

If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive...

In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.

So is it the Supreme Court under the rule of necessity, or does the future of cameras in the courtroom rest on the august shoulders of whichever circuit in which the lawsuit is brought? It seems like it would virtually have to be the latter.

If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive...

Is this statute Constitutional in light of Art. I, Sec. 1's "one Supreme Court" language?

Art. III states that, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

As mentioned above, the Founders were aware of the effects of inflation and considered decreased value of money to also be "diminished" salary. So no, Congress could not threaten to withhold funding. (Well, it could; it would just be another case where the Court would have to enforce the provision itself.)

Stupid question of the day: where is the Constitutional authority of Congress to regulate the Court's internal controls? I'm reading Art. I, Sec. 8, and not coming up with much. (Presumably, the fact that the Court has not chosen to fight other statutes regarding its internal functions does not mean that it finds them constitutionally kosher so much as not worthy of internecine warfare.)

Ultimately, it is silly of Congress to enact this law. If it wants cameras, it should mosey over to the Justices's offices and convince the Court to install them. I just can't figure out why they care so much - and why they would want to provoke the Court.

I'm not trying to be argumentative, but wouldn't "such regulations" relate to the first sentence of the clause, which is, in its entirety: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Doesn't that just tell us that Congress regulates the jurisdiction of the Supreme Court (and inferiour courts)?

Likewise, the first clause of the Necessary and Proper clause (pardon the seeming redundancy) relates to the enumerated powers, #1-17, none of which deal with the Supreme Court's internal functioning. The second clause states that, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So Congress's position is that requiring cameras in the courtroom is necessary and proper to executing judicial power (as seen by eighteenth-century politicians), over the objections of the judges themselves?

I'd watch. I like to watch. But always remember: video killed the radio star.

It would make for a whole generation of armchair justices...probably not a bad thing.

/skip TV, stream it baby!

Maybe the solution is for Congress to add an item to the SCt budget for makeup artists for the Geezers.

Vic,

For every Judge Ito, there are dozens of televised trials and hearings that are conducted with utmost decorum. For instance consider the argument by the 9th Circuit sitting en banc and hearing a case on the legality of California Governor recall. The sky didn't fall. The hearing was quite informative.