Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History

On Dec. 5, 2011, S. 1945 was tossed in the bill hopper (OK, I'm old school!), quickly read twice, because, well, the text really is brief, and referred to the Committee on the Judiciary. Hearings were held by the Subcommittee on Administrative Oversight and the Courts on the following day. Wow! Perhaps if all congressional bills were required to be one sentence long, our elected representatives would get down to business. (Think income tax reform: "All 'persons," individual human beings and business organizations, earning more than $30,000 will pay X% of their global annual income because all deductions, tax credits, loss carryovers and their kind are "history.")

Was a fire lit under the behinds of members of  the Senate Judiciary Committee because the latest USA TODAY/Gallup Poll found that 72% of the people surveyed think the Supreme Court should allow cameras to televise the 5.5-plus hours of oral arguments to be held during two days in March regarding the health care law being constitutionally challenged  by 26 states and the National Federation of Independent Business? Politics is poll-driven.

However one should note that S. 1945's sponsor is Sen. Durbin. Ah, he is (1) a Democrat and (2) a Senator from Illinois. Anyone remember which party and which state President Obama is from? (Note to readers, I voted for Obama and if I still lived in Illinois, I probably would have voted for Durbin, a relic of Illinois Democratic Party machine politics, if only because he was the brunt of a Karl Rove prank decades ago.)

S. 1945 is politically correct in that it is not focused on televising just the health care act's oral arguments. That would be too obvious. Titled, A bill to permit the televising of Supreme Court proceedings, the text reads:

SECTION 1. AMENDMENT TO TITLE 28.

(a) In General- Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:

Sec. 678. Televising Supreme Court proceedings

`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.

The hearings focused on whether SCOTUS proceedings should be required to be televised by statute (with the due process rights exception) or should by optional as in at the discretion of the Supreme Court. You can view the hearing's webcast here. I wonder if a Supreme Court Justice assigned one of his clerks (oops, my bad) or one of her clerks to watch the webcast.

Time to Get Serious. Federal Evidence Review has published on its website Cameras in the Courtroom Resource Page. It is an extensive collection of materials made available for an informed debate on what really is an important issue -- conducting SCOTUS proceedings in the open in the 21st century. Highly recommended. Also note that Federal Evidence Review has published a summary the Senate Judiciary Subcommittee hearing worth taking the time to read.

With a hat tip to Media Law Prof Blog, one might also be interested in reading Drexel Law prof Lisa McElroy's recent SSRN upload, Cameras at the Supreme Court: A Rhetorical Analysis.

What Would James Madison Do? While televised SCOTUS proceedings will make excellent fodder for the Onion News Network, the Corbert Report, and non-English language audiences for YouTube-ing the equivalent of the popular "Hitler parody videos," I have a hunch that if the framers of the Constitution were drafting the Consitution today, live broadcasts of SCOTUS proceedings would not even be an issue.

While Thomas Jefferson had an assine idea that the Constitution should be rewritten by each generation, I'll defer to the equally assine Originalist school of constitutional law jurisprudience for their opinion. At least one of the two long-time subscribers to that intellectually bankrupt school of thought could become a "rock star" if he sides with the proponents of televising SCOTUS proceedings --- and it ain't Justice Thomas. Besides don't we all want to verify the stats being compiled and published about which Justice is getting the most laughter in the court room?

And Now for Power Broker Gamesmanship. Call me cynical but I'm thinking President Obama et al do not want to queue up for tickets to attend the Supreme Court's oral arguments on health care reform. President Andrew Jackson would have sat in the front row. Perhaps President LBJ, too; more likely he would have called a Justice or two or three to the White House for a meeting. When LBJ really wanted to set the stage, meetings took place in his bedroom (imagine LBJ in his bathrobe ... now try to kill that image!) [JH]