Bench Memos

Re: Specter Sputters

A few additional thoughts on Specter’s op-ed in support of legislation that he has introduced (S. 1768) that would require the Supreme Court to permit television coverage of its oral arguments:

1. I have no strong views on the policy merits of this matter, though I confess that Justice Souter’s statement in 1996 that “the day you see a camera come into our courtroom, it’s going to roll over my dead body” does bias me heavily in favor of the legislation. (To be clear, lest anyone fault Justice Souter for using hyperbole that “fuels the irrational fringe,” we should all wish Justice Souter a long and healthy retirement.) I also am inclined to believe that requiring television coverage of proceedings that the Court already chooses to make public does not present any substantial separation-of-powers concerns.

2. What is most striking about Specter’s op-ed is not its boldness but its abject meekness. At the same time that Specter criticizes the Court for “its super-legislature status,” he embraces the notion that “the Constitution is what the Supreme Court says it is” and argues merely that “it is in the public interest for the public to at least know what the court is doing.” As I explained here, Specter’s view of the Constitution is both wrong and dangerous.

3. One minor correction about Specter’s legislation is also worth noting: Specter says that the legislation requires that the Court allow television coverage “unless it is barred by the court on a case-by-case basis on the grounds that it would adversely affect the proceedings.” But S. 1768 actually requires that the Court allow television coverage unless “such coverage in a particular case would constitute a violation of the due process rights of 1 or more parties before the Court.” It is difficult to imagine that that narrower exception, taken seriously, would ever be met.

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