By Devin Henry
WASHINGTON — When the Supreme Court hears arguments on President Obama’s health care reform bill next year, it’ll be considering overturning a law that effects nearly everyone in the country — but only several hundred people will get to see the court deliberate the matter.
The most powerful legal body in the United States does all of its public business essentially in the dark, releasing only audio recordings, transcripts and an occasional stenographic image from within its courtroom. The high court traditionally has shied away from allowing cameras in its chamber — former Chief Justice William Rehnquist most notably said he’d drop that custom if all nine members of the court agreed to do so. They never did.
Sen. Amy Klobuchar has co-sponsored a bill intended to force them to do just that — put video cameras into the courtroom unless a majority of the justices agree doing so would damage the due process rights of the parties involved in a case. There’s only problem: Congress might not technically have the power to force them to do so.
Klobuchar’s basic argument is that the Supreme Court’s decisions are so impactful that the public deliberation that leads up to them should be readily accessible to all Americans, even those unable to travel to Washington to wait in a line to see only a few minutes of oral arguments. Video cameras would allow the Court to transmit its proceedings in a way that is easier for the general public to consume. Steps the court has only (relatively) recently taken — posting audio recordings of the oral arguments online, for example — are helpful, but don’t go nearly far enough in offering a transparent look into the justice’s public deliberations.
“Although the Supreme Court is open to all Americans in theory, the reality is that access is extremely restricted,” Klobuchar said at a hearing of her Senate Judiciary Subcommittee on Tuesday. “The public has a right to see how the court functions and how it reaches its rulings. … Democracy must be open.”
Support from Kagan
The Supreme Court’s newest justice, Elena Kagan, voiced support for allowing cameras in the courtroom during her 2010 confirmation hearings, Klobuchar said, and a pilot program is currently studying the effects of cameras in federal appeals courts across the country.
But the matter of cameras in the Supreme Court has become especially pertinent recently given the approaching marathon arguments on Obama’s health care law. At least one news organization, C-SPAN, has asked the court to allow cameras into the chamber, and Sen. Chuck Grassley (R-IA) wrote a letter to the court also asking them to do so. Grassley is sponsoring the new legislation.
Opponents argue allowing cameras in the courtroom would turn the Supreme Court into a political forum rather than a legal one.
“To the extent that cameras in the courtroom undermine the sense of objectivity, they cause the courts to be seen more as a policy or a political entity, the court’s moral authority has perhaps slightly been reduced,” Republican Sen. Jeff Sessions said Tuesday. “To the extent our justices worry about that, I think we should give them deference.”
But whether one supports legislation mandating cameras or not, there might not be much hope for Congress to actually force it to happen.
The judiciary branch alone has the right to determine what happens in its courtrooms, according to some experts. Even one of the biggest supporters of cameras in the courtroom, University of Minnesota media law professor Jane Kirtley, acknowledged that.
“I believe that time is on the side of getting cameras in there,” Kirtley said in an interview. But, “will this force the Supreme Court to put cameras in there? No, it will not.”
A few members of a panel that testified before Klobuchar’s committee said the same thing.
Maureen Mahoney, a member of a Washington-based Supreme Court and appellate legal practice, told the committee the legislation could run into serious constitutionality challenges before it ever takes effect.
“It would, after all, be an effort to strip the court of its historic authority to decide how to control proceedings in its own chamber,” she said.
Former U.S. Sen. Arlen Specter, however, argued that Congress has the right to handle the court’s administrative matters and a separation of powers argument against the bill would fail.
“The Congress decides what a quorum is on the court — six. The Congress decides how many justices there will be on the court,” he told the committee. “The Congress has the authority to tell the court when to begin its oral arguments — on the first Monday in October. The Congress has the authority to tell the court which cases it should hear, and I believe that the Congress has the authority to tell them … if it ought to be televised.”
Thomas Goldstein, an attorney who runs SCOTUS Blog, said he thinks a camera requirement would be upheld, but he doesn’t necessarily see the benefit in forcing a constitutional challenge on the matter.
“They are headed in this direction on their own. … They have asked for some deference in the process of reaching this conclusion,” he told the panel. “The trajectory is that it is inevitable that television will be in the Supreme Court, and I would not provoke the constitutional controversy of requiring them to do it.”