Michael Dorf has this piece on the constitutionality of Senator Specter’s proposed bill to force cameras into SCOTUS.
According to Senator Specter, Congress can mandate cameras in the Supreme Court pursuant to its power, under Article III of the Constitution, to make “regulations” concerning the Court’s jurisdiction. Federal statutes enacted by Congress set such basic matters as the number of Supreme Court Justices and, within broad limits, the kinds of cases they hear. Although Article III forbids Congress from lowering the Justices’ salaries, Congress decides when to give them a raise, and if so, by how much. Congress also sets the budget for the Court, and while Congress generally gives the Justices the funds they request, it is under no constitutional obligation to do so.
Given all of the truly important judicial matters that fall within congressional control, Senator Specter says, surely Congress can regulate a relatively tangential matter such as whether cameras must be permitted in Court. That conclusion is probably correct, but it is not exactly obvious.
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Consider an analogy concerning the Executive Branch: Congress can create and eliminate departments within the Executive Branch, and can exercise considerable control over them, through matters like confirmation of principal officers and budgeting. Nonetheless, the power to decide great matters does not entail the power to decide all small matters.
Suppose, for instance, Congress enacted a law mandating that at every Cabinet meeting, the President must give each of his Cabinet secretaries an opportunity to speak for at least two minutes before the President made a decision. Such a law would not constrain the substantive decisions of the President in any way. Nor would it be nearly so determinative of Executive policy as a decision to abolish or substantially cut funding for some federal agency. It would not even violate a general principle forbidding congressional control over Executive Branch procedure; after all, the federal Administrative Procedure Act (APA) sets forth detailed procedures that federal agencies must follow in adopting regulations or taking other official actions–and no one seriously challenges the APA’s constitutionality on that ground.
Yet the hypothetical “two-minute speech” law would arguably violate the separation of powers, by unduly interfering with the most internal functions of the Executive Branch. Although the Supreme Court ultimately rejected President Nixon’s claim of an absolute executive privilege in the 1974 case of United States v. Nixon, en route to that conclusion the Court did recognize a constitutional dimension to internal deliberations of the Executive. At a minimum, each branch must have a good reason for trying to interfere with the deliberative processes of either of the other branches.
That fact probably explains why Justice Kennedy sought to portray oral arguments as part of the Court’s internal deliberative process. The more oral argument looks like a Cabinet meeting, the less control Congress may legitimately exercise over it.
In the end, however, Senator Specter probably has the better constitutional argument. If Congress were to mandate that the Justices’ post-argument conference had to be public, then that would raise serious separation-of-powers issues. But given that Supreme Court oral arguments are already open to the public, the Specter bill would have only a marginal impact on the Justices’ deliberations.
I have previously considered this issue, and Dorf answers some, but not all of my questions. The Supreme Court generally refuses to place direct limitations on the Court’s own powers from a separation of powers perspective. So would the US v. Nixon analysis apply? Nixon was premised in part on the executive privilege of Article II. Would the Courts have similar considerations? Not clear.
I wrote about a similar topic in my article on Youngstown, titled Youngstown’s Fourth Tier. Is There A Zone of Insight Beyond the Zone of Twilight? In Youngstown, the Court considers the balance of power between Congress and the Executive, yet Jackson’s framework does not address the balance of power between the Executive and the Supreme Court. This is effectively the 4th tier of Youngstown, that we dubbed the “zone of sight in”. This zone was utilized in post-9/11 cases like Rasul and Hamdi, where the Court considered the clash between Article II and Article III.
In the proposed Specter bill, we see a similar conflict–between Article I and Article III. This zone is much less nebulous than the zone in Rasul and Hamdi due to the inherent powers of the Executive (however broad you wish to define it). In contrast, the Congress is a body of enumerated powers, and lacks a general power to impede on the other branches.
I still struggle to find the constitutional authority of Article I to force the Supreme Court, and not an inferior court that could theoretically be abolished, to install cameras.