It seems as if people have been arguing over whether the Supreme Court should televise its proceedings forever.  While my thought is that there would only be twelve people outside of some law profs who would want to watch, outside of the few cases that are heavily promoted as being “important” every year, what’s the big deal? 

The worst that can happen is people realize how boring our job is. An hour of oral argument in a regulatory case and no one will ever watch again.  The best that can happen is that while the public may not have the slightest clue what’s happening, they will be comforted by knowing that they were allowed to see it from the comfort of their den while wearing their snuggy and sipping hot chocolate with those little baby marshmallows.  No harm, except to fashion.

But as Justice Souter proclaimed that if cameras come into the Supreme Court, it will be over his dead body, not everybody takes such a laissez-faire attitude.  While the arguments against cameras in the courtroom are decidedly different when it comes to a trial court, concerns about their impact on the Supreme Court are hardly as severe.  For the most part, there isn’t much rigor to the arguments against televising oral argument before the Supremes, and most commentators think they court should allow it.

Still, the court resists, and it appears that Congress intends to force the issue. At Concurring Opinions, Dave Hoffman raises some interesting questions.

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney?  That it can face the wall?  But more interestingly,

(2) What if the Supreme Court just says no?

Oh my, is it possible that Congress could enact a poorly written law? Clearly, the language sucks. It’s replete with questions, including Dave’s but extending to any number of limitations, prohibitions, conditions, not to mention what the heck they mean by due process rights (does that preclude violations of other rights?).  But poorly written laws are nothing new, and if Congress can craft incomprehensible criminal laws, why should something as innocuous as this be above reproach?

The more interesting question, as Dave notes, is the second. Imagine Souter lying across the threshold refusing to move.  Will the Sergeant at Arms with a cadre of pages storm the court?  They both hard armed guards, but neither has an army.

On the other hand, as  Tony Mauro points out in a comment at SCOTUSBlog, it’s not as if Congress doesn’t pass laws affecting the workings of the Supreme Court.

But if the Court does not act, I don’t see why Congress could not. Acts of Congress dictate the size and quorum of the Court (28 U.S.C. 1) and when the Court’s session should begin (28 U.S.C. 2), so something as unremarkable as camera access seems to be a “lesser included” kind of regulation of the Court.

Then again, do cameras in the courtroom fall into the “housekeeping” measures with which Congress becomes involved?  If they were so unremarkable, why are so many people remarking?

Given the politics surrounding the judicial branch of government, with presidential candidates arguing that judges should be hauled before Congress to explain unpopular decisions, and perhaps be drawn and quartered if their answers don’t meet the approval of the 27 people who comprise a particular (oh, let’s call it the 6th just for fun) congressional district in Georgia,   Would this be a great time to open the door for increased influence from a co-equal branch of government to start telling another how to run its house?

The flip side of so many thinking there’s really not much harm in allowing cameras in the Supreme Court is that it’s similarly not all that important to do so either.  Sure, there’s merit to the argument that public confidence is enhanced by transparency, but few of the public who desires to spend their time watching will have a sufficient appreciation of what they’re watching for it to be meaningful. 

It’s largely form over substance, as the level of nuanced argument in the matters that come before the court are often well beyond the public’s more simplistic understanding of the law.  While this is one of the arguments against cameras, that the public’s inability to appreciate what they’re watching will serve to create controversy based on ignorance, that’s nothing new. Heck, read the lawprofs’ commentary about the Jones decision and ignorance abounds. Why shouldn’t the public get its piece of the pie?

Yet, few lawyers want the politicians poking their fingers into court decisions, particularly those of us who tend to be on the unpopular side of the Constitution, as opposed to those who believe every defendant should rot in hell and whatever worked for the Puritans ought to form our legal morality in perpetuity.

Given the potential for grave mischief if Congress starts tinkering with the inner workings of the Supreme Court, now seems to be a particularly bad time, both for Congress to enact a law and for the rest of us, who might otherwise not care a great deal about cameras in the Supreme Court, to let that opinion blind us to the camel’s nose peeking under the tent.

Cameras in the courtroom may be no big deal.  Congress in the courtroom is another matter.