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.
My name is Mike Sacks. I am a third-year law student at Georgetown interested in legal journalism and the intersection of law and politics. This semester, I have no morning classes. As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.
For every politically salient case from January through April, I will attempt to be at the head of the general admission line. This is no mean feat: for the September rehearing of Citizens United v. FEC–also Justice Sotomayor’s first appearance on the Bench–much of the line started forming around 4am. How do I know this? Because I claimed my first ever “First One @ One First” ticket by spreading my blanket on the sidewalk at 11pm the previous night.
As a Duke University graduate, I should have ample camping-out experience. But in my four years as an undergraduate, I actively sought to–and succeeded in–securing my admission into the Duke-UNC games without once suffering through wintry nights in a flimsy tent perched on the soggy soil of Krzyzewskiville. Indeed, as a former “Nina Totintern,” I once enjoyed a similar evasion of the elements at the Supreme Court. But those halcyon days of press-passed entrances are over. Now I must rough it.
Camping out at the Court in winter’s nadir will not be easy. Tents are forbidden. The concrete sidewalk makes for an unforgiving bed. Sprinklers spring up in the still of the night. Challenging climate be damned, however; when the next person arrives, excited to be first, he or she will find me, with my cracked lips and frozen fingers, sardonically asking how it feels to be second and seriously inquiring why he or she is crazy enough to get in line so early.
And that question–“why are you here?”–is what I set out to explore. Every Supreme Court reporter tells us what goes on inside the Court at argument and in its opinions. Every Supreme Court reporter gets insight and analysis from expert academics and practitioners. Sometimes Supreme Court reporters even interview a party in the case to expose the human element often lost in the rarefied air of high court’s legal abstraction. But no Supreme Court reporters ever ask the Courtroom’s spectators why they have congregated inside the Temple of our Civil Religion.
Our citizenry who have come to witness the Court first-hand surely have something to say, whether when waiting in line before the Court opens or spilling out onto the steps after the Chief Justice’s gavel bangs closed the day’s session. Perhaps no one ever asks them because our judiciary is supposed to function independent of public passions. But only the most dogmatic adherents to the mythology of an insulated Court will maintain that our Third Branch is apolitical. Look to the anti-abortion protesters who spend every day standing silent in front of the Court or the grandstanding Senators asking stonewalling judicial nominees for their views on the day’s hot-button political issues. Look at the Court’s history in matters of race, sex, Presidential power,economic policy, law enforcement, sexual orientation, to name only a handful, to find the Court inexorably intertwined with the era’s political climate. Look even at the Court itself: justices are labeled for their fidelity to liberalism or conservatism, however epochally defined.
The Court is responsive to politics. Consequentially, the vox populi should matter for those interested in the Court. What does the person in line at 5am hope to see in this case? Why is the family that shows up at 9am hoping to get in? How many of those waiting for the doors to open are lawyers invested in the litigation or legal issues at play or professionals or citizens who will be impacted by how the Court may rule? How many people exiting the Court even understood what they just saw and heard? Do they care or were they just there to be there? All of these people represent the American public. How they vote is impacted by how they perceive our country’s system of governance. Their experience with the Court–whether from the position of knowledge or ignorance, veneration or cynicism, all of the above, or somewhere in between–helps shape our political dialogue that informs who we elect to represent us in the Executive and Legislative Branches. These branches, in turn, shape the judiciary through nominations and confirmations; and the judiciary, thus shaped, passes judgment on the political choices made by earlier–and sometimes contemporary–Presidents and Congresses.
Accordingly, my other aim for this project is to test my hypothesis that the Roberts Court has been quite responsive to its surrounding, and shifting, political climate. I have a forthcoming piece detailing my thoughts, but I will preview my evidence:
- During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress. Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance.
- The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate. The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
- Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
- This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans. The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes. In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September. And not only is that case officially part of last term, but also the fact that no opinion has come down yet has led some to speculate that it may not be the cut-and-dry 5-4 conservative opinion most expect. But more on that case, and how it fits into my hypothesis, when the decision actually comes down.
Finally, I will use this site to post other thoughts on the Court that I haven’t yet read anywhere else. Given that the legal and political blogs tend to express every possible sentiment existing in this world and parallel universes, these entries will likely be rare and in the shape of wild conjecture. When another site says something I’m thinking, almost always much better than I can express it myself, I will post it here. Further, when another site says something exceedingly compelling that I have not yet thought or I could have never come up with by myself, I will post it here. And if another site says something exceedingly objectionable and I have something to contribute to it, I will post it here.
Thank you for reading. If this introduction has gained your interest–and if you’re this far, I hope it has–please subscribe and share!