A seasoned U.S. Supreme Court advocate and a top federal judge on Tuesday expressed concern about a bill that would require the Court to allow video coverage of its proceedings, expressing doubt about Congress’ authority to order the high court to end its ban on cameras.
Speaking during a Senate Judiciary Committee hearing, Maureen Mahoney, founder of the Latham & Watkins Supreme Court and appellate practice, and Chief Judge Anthony Scirica of the U.S. Court of Appeals for the 3d Circuit, said the legislation that senators Richard Durbin (D-Ill.) and Charles Grassley (R-Iowa) introduced on Monday raises constitutional questions concerning the separation of powers. The decision to bring cameras inside the Court chamber should be left to the justices, they said.
“The Court is in the best position to assess the impact of electronic media on its proceedings, and it can be trusted to continue to give the issues careful consideration,” Mahoney said.
Former Sen. Arlen Specter (D-Pa.), a longtime advocate of televising Court hearings, dismissed concerns about the separation of powers. He testified that Congress already decides issues – including the number of its justices and when it begins its arguments each year – that affect the Court.
During the last Congress, Specter introduced legislation similar to the Durbin and Grassley bill. The measure received the Senate Judiciary Committee’s approval. But it did not receive a vote on the Senate floor.
Specter said cameras should be in the Court, especially as it reviews President Obama’s health care reforms in March.
“That is a case which touches every American and ought to be accessible to the public,” Specter said.
“We’re a visual culture,” Goldstein said. “People watch television. That’s how they get a lot of their news.”
C-SPAN chairman and CEO Brian Lamb and Grassley last month each called on Chief Justice John Roberts Jr. to allow live video coverage of the unusually long five and a half hours of oral arguments scheduled in the health care case. If approved, the one-time exception would be the first chance for cameras to capture arguments in a case before the Court.
The Court now provides only audio recordings of arguments, but it doesn’t make the sound recordings available until the Friday of the week in which they happened. The justices hear arguments on Mondays, Tuesdays and Wednesdays, making same- or next-day use of the audio impossible. News reporters or members of the public hoping to see or hear the arguments live must be one of the people who are able to snag one of the approximately 250 seats in the Court chamber.
Grassley, the top Senate Judiciary Committee Republican, said the release of sound recordings was a “step in the right direction,” but “not enough.”
“I believe that the nature of our government and the fundamental principles upon which it was built require more,” Grassley said.
Roberts and most of the sitting justices have expressed at least some opposition to video coverage, citing the uniqueness of the Court and a desire to stick with a tradition that they think functions fine. Specter noted in his testimony that in a recent article, National Law Journal Supreme Court correspondent Tony Mauro called the Court’s position a “defiant stance.”
Justices Sonia Sotomayor and Elena Kagan are the only members of the Court to endorse cameras.
Roberts said in June that he looks forward to reviewing the findings of a three-year experiment started this year to examine the effect cameras have on civil proceedings in a few lower federal courts, likely putting off any re-examination of the Court’s policy until 2014.
Chief Justice Mark Cady of the Iowa Supreme Court, whose court allows cameras, said video coverage gives the public an opportunity to get a better understanding of the court system.
“Our courts are an honest thing,” Cady said. “Cameras can help show it.”
Photo by National Law Journal photographer Diego M. Radzinschi