Vol 1 No 31 – Should SCOTUS Hearings by Televised

Vol 1 No 31 – Should SCOTUS Hearings by Televised

Want to attend oral arguments at the Supreme Court, whose Fall Term begins next week (7 October)?  Court hearings are open to the public; but if it is an important case, be prepared to stand in line all night on the Court’s steps.  If you are not up to that, although it is frowned upon by the Court, you can hire a “line-stander.”  The going rate is $50 per hour and there are several companies in D.C. that offer the service. Can’t afford $500 for a 10-hour line-stander and don’t want to stand in line yourself all night?  Call a line standing service around 4 a.m. and ask how many people are in line. The service will call one of its standers currently in the line, and advise you on your odds of getting in.  Don’t forget – the doors open at 9:30am.

This reveals the popularity of Supreme Court hearings – to some people at least.

To show the other side of this coin, after the Supreme Court has rendered its opinion in an important case go to any mall and ask random citizens questions about the opinion.  Even if it is a landmark case, few will know the details and none will know the constitutional implications.

So why not just have Congress order the Supreme Court to televise its proceedings?  More people will be able to “participate” in the process and more will know and understand the implications of the ruling.  Right?

The first question to be asked: does Congress have the authority to order the Supreme Court to do so? Remember, in Marbury v. Madison the issue was whether Congress had the constitutional authority to provide the Court (via the Judiciary Act) with Writ of Mandamus power, and John Marshall said no, they did not, and declared the entire Act (not just the Mandamus clause) unconstitutional.

Article 1, Section 5 of the Constitution provides Congress authority to set its own rules and procedures, but not to set rules or procedures for another co-equal branch. Congress does have the authority, in Article 3, to restrict the jurisdictional authority of the Court and Article 3 also provides Congress the authority to “ordain and establish” the court system; but it is by no means clear that this provides them authority to order televised proceedings. Congress has historically been allowed to set the date for the start of the Court’s term, but this is one of the few ways that Congress has ventured into the Court’s “domain.”

In 2009, then-Senator Arlen Specter (D-PA) and seven co-sponsors (all but one of them also Democrat) introduced a resolution that proposed to express the “sense of Congress” that sessions of the Court should be televised. Texas Representative Ted Poe introduced a bill similar to this in the House. Under Poe’s bill the only exception to televising the proceedings would be if a majority of justices decided that allowing the coverage in a certain case would violate the due process rights of the litigants.

Supporters at the time argued that other government proceedings were already televised, including sessions of both the House of Representative and the Senate (on C-SPAN and, occasionally, by the mainstream media). You can even find clips of your favorite Congressmen addressing their colleagues on You-Tube.

When the idea of televised SCOTUS hearings became an issue back in 1993, various opinion polls were taken on the issue. 45% of voters said that televising the Court’s proceedings would be good “because the judges would consider public opinion more” in making decisions, while 31% said it would be bad because justices would consider public opinion too much. The rest said they were unsure. Roughly half of voters said they would watch the televised proceedings sometimes or regularly, only ten percent said they would never watch them.

The Court does make audiotapes of oral arguments and opinions available to the public. “May it Please the Court,” edited by Peter Irons and Stephanie Guitton, is one example. The book comes with a CD of live recordings of key and landmark cases such as Roe v. Wade. But who wants to listen to audio recordings of lawyers arguing?

My conclusion: I think televised proceedings would be good for the country; anything that raises the visibility of our Constitution among a people more interested in who is on “Dancing with the Stars” has to ultimately be good.  It appears unlikely, however, that the Court will make such a change itself, and having Congress order it raises unnecessary constitutional problems. On the other hand, it is clear that the Court listens to public opinion and even bases some decisions more on changing public mores than on the law (although to do so is a travesty – in my opinion). My conclusion: the American people should insist the hearing be televised by a letter writing campaign to the Chief Justice.