Feb 18, 2013

Posted in Uncategorized

Justice Sotomayor’s “paternalistic streak” and “intellectual poll tax”

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Adam Liptak has some sharp words for Justice Sotomayor, who changed her position with respect to allowing cameras in the Supreme Court:

Justice Sonia Sotomayor, populist, revealed a paternalistic streak this month, announcing that she had rethought her enthusiasm for video coverage of Supreme Court arguments.

At her confirmation hearings in 2009, she said she was in favor of letting citizens see their government at work. “I have had positive experiences with cameras,” she said. “When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and so there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”

As a descriptive matter, she was right: making sense of a Supreme Court argument without substantial preparation is hard. But Justice Sotomayor’s approach also sounds like an intellectual poll tax that could just as well justify limiting attendance in the courtroom to people smart enough and diligent enough to know what is going on.

It is quite paternalistic, and elitist to assume that because the public cannot understand what goes on in Court, they should not be able to see it. Debates of arcane congressional debates likely go over the heads of many on C-SPAN, but they are available.

Kudos for Liptak for calling out Sotomayor, as well as Kagan, on flipping the script.

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