Bench Memos

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Specter Sputters


In today’s Washington Post, Sen. Arlen Specter has an op-ed calling for cameras in the chamber of the Supreme Court for oral arguments and the announcement of decisions. Whatever one’s views on this issue, one cannot help but be impressed by the string of bad arguments and downright non sequiturs produced in a mere 800 words.

First paragraph: Specter reminds us of the clamor over Bush v. Gore in late 2000. And he thinks this is an argument for having had cameras in the courtroom on December 11, the day the lawyers made their final arguments in the case. Really? One would have thought the absence of cameras on that day made that place a blessed sanctuary, a retreat where calm reason might yet prevail.

Second paragraph: Specter cites the 1980 case of Richmond Newspapers v. Virginia, claiming the Court itself “articulated the rationale for televising its proceedings” in that ruling. But the case had to do with a judge’s decision to close a murder trial to the public altogether. Access for television in particular had nothing to do with the case. So this has what to do with the Supreme Court, where print reporters have full access?

Third and fourth paragraphs: “No one has denied the Congress’s legislative authority to decide key issues governing the Supreme Court,” writes Specter, citing various jurisdictional and procedural provisions in statutes. And he’s quite right that “no one” has denied this—not even the justices he goes on to criticize here, Kennedy and Thomas, who he says “insisted that Congress should mind its own business and respect the Court’s autonomy.” (And not me either, when I blogged on this last week.) Either Senator Specter cannot tell the difference between a “cannot” argument and a “should not” argument, or he’s counting on his readers not to notice the difference.

Fifth and sixth paragraphs: Here we get the crashing non sequitur that if the Supreme Court wants its autonomy respected, it should quit messing with Congress’s autonomy. The evidence of the Court’s interference? That it has struck down certain statutes for which Specter voted. Hmm. Given the existence of the power of judicial review, isn’t striking down acts of Congress occasionally going to be a duty of the Court? One could quarrel with this or that ruling about this or that law—or better yet, come up with a thoughtful criticism of the scope of judicial review generally—but Specter hardly begins to build a case here that is any stronger than a personal snit.

Seventh paragraph: Specter chucks the argument in the previous two paragraphs by embracing the idea that the Court has “the last word” on the meaning of the Constitution. Emily Litella, call your office.

From there to the end of this ten-paragraph tirade, Specter simply stamps his feet, insisting that because the Court decides really really really important questions, we’re entitled to watch the justices on our TVs while they talk to lawyers and announce their rulings.

Convinced yet? No? Well then—I know you saw it coming—Specter closes with a fanfare of trumpets in the form of Louis Brandeis’s remark that “sunlight is . . . the best disinfectant.” Never mind that Brandeis published these words in 1933, in the radio era, and it never occurred to Brandeis to plump for live radio broadcasts of arguments at the Court. Sunlight, klieg lights—for Specter these are interchangeable.

If there are arguments on the other side, Specter evinces no awareness of what they might be. But this is the least surprising thing about this flimsy article.


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