Would the statute requiring the televising of Supreme Court proceedings be constitutional?

February 9th, 2012

Today the Senate Judiciary Committee passed along an 11-7 party-line vote a bill, S. 1945, that would require the Supreme Court to televise proceedings. Here is the text of the bill:


(a) IN GENERAL.—Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:

§ 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.

So a few observations. It is “shall,” not may.  In other words, the Court has to do it. Separation of Powers problem?

Next, the exception requires a majority of the Court to determine not just that cameras are inappropriate, but that it would actually constitute a due process violation of one of the parties before the Court. That is narrow. First, it is not enough for a majority of the Justices to just decide they don’t want to televise something. Is there any other law where it explicitly states that a majority of Justices is must *vote*  a certain way to do something. 28 U.S.C. 1 provides that six members of the Court constitutes a quorum. But that is not contingent. Third, isn’t determining whether filming a proceeding violates someone’s due process rights inherently an advisory opinion? The Court can’t just willy-nilly say something is a due process violation on their own terms. There must be a live case or controversy before them. OF course a case may itself carry a due process issue, but most cases don’t. Would this matter be in the original jurisdiction of the Supreme Court? Marbury anyone? Would there need to be a written order or explanation explaining refusal of cameras? Or would it be pro forma like a recusal decision?

And could the Court review the constitutionality of this statute? What happens if the court declines to remove cameras for a proceeding–say they find no due process violation, or a justice is recused and the vote is 4-4 (no majority). What remedy would lie? Could someone seek an injunction in district court ordering the Supreme Court *not* to film a proceeding? On appeal, could the Supreme Court possibly hear that case without all 9 Justices recusing?

Also, take a look at the rest of 28 USC Chapter 45, where this Amendment is to be inserted. It talks about ministerial items, such as the appointment of the Clerk, the Marshall, the Reporter, the Librarian, law clerks, secretaries, printing and binding, and the like. Nothing in that section tells the Justices what they can or have to do. The other relevant section, 28 USC Chapter 1, defining the Supreme Court discusses the requirements of a quorum, the term of the Court (First Monday!), what happens when the Chief is unable to perform the duties of his office (“his powers and duties shall devolve upon the associate justice next in precedence”), precedence of associate justices, and salaries of justices. Nothing telling the Justices what to do, or how to do it.

Oh there are so many things wrong with this I don’t know where to start.

For my previous thoughts on cameras in the Court, see here, here, and here.

Update: Dave Hoffman writes:

What ifthe Supreme Court just says no?  The Marshall of the court reports to the Chief, not to the President or the Congress. What is the Coult were simply to decide, as a body, that it didn’t feel bound by another branch’s wishes on how to conduct its proceedings? Obviously, this would never actually happen. But imagine a different case, where the Congress prescribed wig-wearing?  Or how long arguments would last?  Or brief length or content? I recall a Larry Tribe con law exam in which the Congress wrote a law the required the court to decide its constitutionality in a matter of days.  That struck me as unlikely to survive scrutiny.  Similarly here, there’s a plausible separation of powers argument that the Congress doesn’t have the right to tell the Court how to run its house.  That’s precisely what Mike Dorf argued in thiscolumn, and it’s surprising to me that so few mainstream journalists have picked up the objection. (But see this Scotusblog discussion.)  Basically, if I were the Court and I didn’t want to be on TV, I’d consider telling Congress to go pound sand.  They don’t have an army either.

Update: Scott Greenfield points me to a comment by Tony Mauro on SCOTUSBlog’s community:

But if the Court does not act, I don’t see why Congress could not. Acts of Congress dictate the size and quorum of the Court (28 U.S.C. 1) and when the Court’s session should begin (28 U.S.C. 2), so something as unremarkable as camera access seems to be a “lesser included” kind of regulation of the Court.

I’ve elaborated on the exceptionalist arguments made against cameras in a recent law review article in the Reynolds Courts & Media Law Journal, titled “Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism.” Available on ssrn at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945361
Tony’s “lesser included” argument differs from mine. He may be right. I tend to think that ministerial things like a start date and a quorum differ from telling them to hold their proceedings in a certain way.
Scott writes:
Then again, do cameras in the courtroom fall into the “housekeeping” measures with which Congress becomes involved?  If they were so unremarkable, why are so many people remarking?