Posted in Non-justiciable by Mike Sacks on February 16, 2011

On a quick visit to the Supreme Court’s official website this morning, I noticed a new option under its Opinions menu: Video Resources.

At first I thought, “It couldn’t be!”  Well, it turns out that it, indeed, couldn’t be.  The Court wasn’t usurping C-Span over the years by surreptitiously recording video of its oral arguments to be released when no one was looking.  No, the two items available for download in this section are pieces of video evidence crucial to the Court’s decisionmaking in cases from 2007 and 2008.

The first video is a victim impact statement at issue in Kelly v. California, a case for which the Court denied certiorari, prompting Justice Stevens to issue a statement deeming the video to be inadmissibly prejudicial, if not irrelevant, to the capital case at hand.

The second video is of a car chase that the Court reviewed in Scott v. Harris ultimately to answer by an 8-1 vote in the affirmative the question of “whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind.”

By creating this new listing on its website, the Court hasn’t quietly unveiled never-before-seen footage: footnotes in both the Kelly statement and the Scott decision provide links to where the Court stored the videos on its former website.  Rather, the Court has simply made these videos more accessible than before.

Nevertheless, I’m still holding out hope that one day I’ll check the SCOTUS A/V Club to find that the Court has converted from Betamax the pilot oral argument recording of some obscure, late-Burger era case that contains such unflattering depictions of the justices as to expose once and for all the real reason why they remain so firmly committed against cameras in the courtroom.


Jost on Cameras in the Courtroom

Posted in F1@1F Friends by Mike Sacks on January 24, 2011

Ken Jost, the Supreme Court editor at CQ Press, has put together a lengthy and comprehensive analysis on all things “Cameras in the Court” in a new report for CQ Researcher.  I’ve seen a copy–which includes a sidebar interview with me among its 20-plus pages–and the report really achieves the impossible by making the otherwise well-trod topic quite interesting by exploring its unnoticed nuances and taken-for-granted history.  An excerpt introducing the report is available at CQ Researcher’s blog:

[E]xcept for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.

Camera-access advocates have been making their case over the past decade in large part by emphasizing the public’s limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.

The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.

The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices’ personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”

This excerpt, however, hardly does justice to the breadth and depth of the full report, which you can purchase in print or electronic format at CQ Press.

My own take on the topic can be found here and here.

Reflections on My Chat with Justice Stevens re: Cameras in the Court

Posted in Justicespotting, Non-justiciable by Mike Sacks on October 8, 2010

This morning at Georgetown Law’s symposium in celebration of Justice Stevens, I had the good fortune–and great honor–of speaking with the Justice himself for a few minutes.  Upon my introducing myself, I was surprised–and greatly honored–to learn that he was familiar with my work.  So as I handed him a printed copy of my article recounting his final oral argument, he asked if it was the one he saw in the post the other day.

“The Post?” I asked.  “I’ve written for the ABA Journal and Christian Science Monitor, but never the Washington Post.” [Note: This conversation has been reconstructed from my memory; the quotations are accurate portrayals of our discussion, but not of the exact words spoken.]

“No, I received something of yours in the post.”

He opened the envelope and looked at the first few sentences of the story.

“This is not the same one,” Justice Stevens said, as he thanked me for the new reading material.  And whoever mailed the justice one of my columns, I thank you.

He then asked my opinion on cameras in the Court, perhaps implying that the article he had already seen was the one from June’s final day of the last term.

I told him that I am fully in favor of televised proceedings.  He mentioned that there could be some adverse consequences.  I responded that his former colleagues could be trusted to smack down any grandstanding lawyers, as they have always done.

“And what about the justices themselves?”

“The Daily Show can keep them in check,” I suggested.  By his knowing laugh, I submit that the Justice agreed with me.

I had the feeling that Stevens trotted out the commonly voiced concerns about cameras in the Court not because he believed in them, but rather because he wanted to hear how easily a young Court watcher could swat them away.  It is disappointing that the Court’s reluctance to televise its oral arguments stems from its lack of faith in the Bench and Bar to behave themselves in front of the cameras.

As the event began and the panelists began recounting their stories of Justice Stevens’s “humble, devastating, and kind” demeanor from the bench, as former Solicitor General Paul Clement aptly described it, I kept thinking how tragic it is that the vast majority of Americans never had a chance to see Justice Stevens in action.

At the end of each oral argument week, starting today, the Court is releasing the audio recordings of the week’s proceedings.  These recordings invite listeners to listen for themselves to how the Court deals with the country’s thorniest legal issues.  But as exciting as it is to hear Justice Kagan’s first question of her career, Justice Scalia do his best “Sh*t My Dad Says” impression with his various curmudgeonly comments, Justice Ginsburg re-upping her feminist cred, or Justice Alito unwinding his increasingly compelling hypotheticals, we are many years removed from the radio days of Justice Stevens’s youth.

For every argument that the justices will spin out of control and play to the cameras, there are forceful answers in return.  First, some justices already play to the portion of the public that can attend, so what’s the damage if the rest of America sees their antics?  The law should be engaging, not forbidding, and there’s much to be said for Chief Justice Roberts’s more relaxed, laugh-tracked regime, even if a few commentators here and there will take some hypotheticals out of context.

Second, televised proceedings will allow more Americans to know the names and faces of Supreme Court justices.  As public servants who now undergo major media blitzes upon their nominations to the bench, the justices should not feel entitled to perpetual anonymity.  And really, most Americans, though valuing the opportunity to watch the Court in action, will not commit themselves to C-Span three days a week so to better track the justices down in their Northern Virginia supermarkets.

Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen.  Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions.  These scenes cannot be conveyed over audio.  From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.

Until that day arrives when we can watch the justices go about their business, however, today’s footage from their class photo session will have to suffice.

Let’s hope that these nine men and women, all of whom, like Justice Stevens, are or will be national treasures by the time their tenures have expired, will soon show enough faith in themselves and the public to finally put cameras in the Court.

This piece has been cross-posted at The CockleBur.

Why I’m Talking to You

Posted in Anticipation by Mike Sacks on January 15, 2010

NYU Professor Barry Friedman compares the Prop. 8 trial to the 1925 Scopes Monkey Trial, both more “morality plays” than legal cases.  Of cases of major political salience, Friedman writes:

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls. […]

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them? […]

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.

Friedman just came out with a book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, which comprehensively examines the Court’s responsiveness to public opinion up through the early part of this century.

Despite Friedman’s–and others‘–disappointment that the Prop. 8 case will not be televised, the people who camp out to see Perry v. Schwarzenegger at the district court and, ultimately, the Ninth Circuit Court of Appeals and the Supreme Court, are the ones whose reactions to the process are so strong as to compel them to participate through viewing the arguments in the flesh.  And here, Perry is not unique: the same lines form for the cases of great public interest that never had Perry‘s prospect of live broadcast.

For this reason, by waiting out in line, I seek to test the Roberts’ Court’s sensitivity to its surrounding political climate as represented by the sample of citizens who care enough about the case and/or the Court to get to One First Street before the sun rises.  It’s still too early to tell what I’ll find, but I’m sure I’ll find something.  Perhaps I’ll put my interviews on video.  That would be the next best thing, wouldn’t it?

Kennedy Doesn’t Like to Watch

Posted in Case Reports, Clairvoyance by Mike Sacks on January 13, 2010

The Court just issued its first party-line, 5-4 opinion of the term, staying the broadcast of the Prop. 8 trial underway in California to federal courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena.*  Read SCOTUSBlog’s write-up and download the opinion here.

The majority paints its decision in procedural terms, though I find it difficult to believe that the vote would break down similarly if the potentially broadcasted case’s substance was, say, tax evasion.  In such a case containing no hyper-charged political pretext, we could have very well seen a nearly-unanimous vote one way or the other.

Also, note Sotomayor’s vote with the dissent.  If Souter’s distaste for Supreme Courtroom cameras extended on down to the district court level, perhaps he would have voted with the majority, lending the decision a modicum of integrity.

Finally, I am intrigued as to whether this opinion says anything about Kennedy’s potential vote should (when, really) Perry v. Schwarzenegger comes up to the Court.  While one can be fairly certain that the other eight justices voted their policy preferences for Perry‘s underlying issue, something tells me that Kennedy remains eminently swingable.

On the other hand, Kennedy’s vote with the majority today could mirror his abortion jurisprudence.  That is, just as he upheld abortion rights in Casey only to limit its reach in Gonzales v. Carhart, so too could marriage exist beyond the bounds of Kennedy’s gay rights rulings.

*Thanks to commenter Mark for correcting my original statement that the Court stayed the YouTube broadcast.  They didn’t.  But the Court’s temporary stay may be the functional equivalent of a permanent stay on all broadcasting, writes Linda Hirschman for NPR/The Nation:

As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.

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