Over David Souter's Dead Body

No one can say that Sen. Arlen Specter (R-Pa.), the ranking Republican on the Judiciary Committee, has a poor sense of timing. Just days before the start of a two-part landmark public television series on the Supreme Court, he introduced legislation that would attempt to require the Supreme Court to permit television coverage of "all open sessions" of the Court "unless a majority of Justices determined that that due process rights of one or more litigants would be violated." It's a great idea. And perhaps in a generation or two it'll happen. But right now Specter's bill is dead on arrival.

Why? Let me count the ways. First, the Justices don't like being pushed around by Congress when it comes to how the Court itself is run-- it's a separation of powers thing. Second, it is highly doubtful that there is a working "majority" on the Court that would vote in favor of televised proceedings-- even though the two newest Justices, Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr., aren't openly hostile to the idea of cameras in the courtroom (as is, for example, Justice David H Souter). Roberts reportedly is skeptical about the idea and Souter "over my dead body" position mirrors that of the late Chief Justice Warren Burger. I just don't see where the five votes come from.

Third, the Justices know that the law would subject them to a new blizzard of paperwork (or its electronic equivalent). Once you talk about cameras generating due process questions, you create the incentive for every litigant to offer an argument, probably a long-winded one, about how his or her case triggers (or doesn't) due process concerns. Then you have the counter argument. And then you have the media argument. I just don't see the Justices being willing to travel down that path-- it's not like they've been giving anyone a signal lately that they are looking for more work.

I think all of this is a shame, incidentally, because I think that people would have a much better impression of the legal system if they were able to watch the brilliant Justices spar with the brilliant attorneys. But some things just aren't likely to be. The ultimately in legal reality television-- the real Court TV-- is still a long way off.

By Andrew Cohen |  January 29, 2007; 4:27 PM ET
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We also need C-SPAN in the World Court.

Posted by: Oh to have a Blog | January 29, 2007 06:56 PM

Let's say that there is a 5-4 vote on a particular case to let the light of TV shine in. Might that reflect the vote on the decision in that case? Or, if there is a 5-4 vote against TV in a particular case, might that suggest that that majority does not want to have the spotlight on that case for ideological reasons? Or will the bill require, in a particular case, a 5-4 vote against TV in that case? Might the majority opting out of TV do so for what may be perceived to be political reasons?

Posted by: Shag from Brookline | January 30, 2007 07:05 AM

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