It’s a strange feeling coming over me. The Washington Post, in an editorial today, takes Justice Anthony Kennedy to task for being arrogant, upbraids him for speaking in a way that is “at minimum, exceedingly poor taste,” and generally beats him up for having too high-and-mighty an attitude when it comes to the prerogatives of the Supreme Court. Yet despite all those reflexes that make me want to cheer on the Post (“hit him again!”), I think I’d like to defend Justice Kennedy today.
The occasion for the Post’s criticism is Kennedy’s recent testimony to a congressional committee opposing any legislation that would mandate the introduction of cameras to the Court’s chamber. In addition to giving the usual reasons for being against the idea, it seems that Kennedy suggested such a congressional mandate would be “inconsistent with that deference, that etiquette, that should apply between the branches.” At this, the Post goes ballistic: fulminating about “a whiff of a threat” that the Court would strike down such a law, accusing Kennedy of giving an improper “advisory opinion,” and implying that he crossed some ethical line by discussing a matter “in which he and his colleagues have such a deep individual interest.”
Oh, calm down. Whatever one thinks of the idea of TV cameras in the Court’s chamber—I’m opposed but don’t feel really strongly about it—Justice Kennedy raised a very good point in a pretty mild-mannered way. If Congress could, consistent with the separation of powers, force the Court to admit cameras to oral arguments and decision days in the chamber, why could it not force the opening of the Court’s conference room, from which even clerks and other Court employees are barred when the justices are discussing cases? Why, for that matter, could Congress not mandate the placement of cameras in the Oval Office for streaming broadcasts of presidential deliberations?
And it is in no way improper for Justice Kennedy to comment on this in a committee hearing. Far more consequential statutes affecting the Court’s business have been produced with the open participation of the justices in giving shape to the legislation, and no one thought that the rights of litigants were adversely affected—the only relevant sense in which the Court is obliged to steer clear of “advisory opinions.” They didn’t call the Judiciary Act of 1925 “the Judges’ Bill” for nothing.