For years, Tony Mauro of Legal Times and I have been unsuccessfully trying to convince the Supreme Court to let America see, on television, these justices at work, during oral arguments on cases that, when decided, can have a considerable impact on us — sometimes for decades. A strong majority of the justices have adamantly refused to let the cameras in to their august courtroom with its limited seating space.
As I have previously reported, most of them prize their anonymity. Justice Harry Blackmun, who wrote Roe v. Wade for the majority, enjoyed being on the outskirts of an angry crowd of anti-abortion demonstrators railing against him. He did not identify himself.
The late Justice Byron White also preferred being incognito, admitting, "It's very selfish, I know." And Justice Ruth Bader Ginsburg said of her then-colleague, David Souter: "David … can go to the supermarket and do his shopping, and no one will notice."
Justice Anthony Kennedy shut us out because having a national audience watch them would interfere with "the etiquette" of how they communicate with the lawyers and one another.
Especially irritated is Justice Antonin Scalia: "We don't want to become entertainment. I think there's something sick about making entertainment out of real people's legal problems."
One justice, William Brennan, eagerly welcomed television at oral arguments because, he said to me, most Americans have so little knowledge and understanding of how the court reaches its rulings — and of the issues in the often intricate cases themselves. And, he added, much of the accounts in the press, including the Court's ultimate decisions, was — and is — lacking depth and clarity. An exception is Adam Liptak of The New York Times.
Brennan's criticism of what we on the outside know about the Court is even more justified now since much of the print press, wire service and broadcast television allot limited space and airtime, and even then provide only a shallow presentation and analysis of the Court's reverberating work. On cable television and the Internet, the coverage is sharply partisan, leaving the real constitutional issues unplumbed.
What would we learn from actually seeing and hearing the oral arguments? Having been in the press section of this remote courtroom, I can attest that we could learn a lot about the Justice's judicious or injudicious personalities, the ideological bent of their judgments; and the perceptiveness of their questions to the lawyers on both sides.
Moreover, the Justices sometimes disguises their derisive views of their colleagues' positions in the sharp questions they ask of the litigants.
Are many of the citizenry interested in being present — through television — at the oral arguments? (Brian Lamb, head of C-Span, has pledged to cover them in full.)
We finally have current indication of citizens' views on this as reported by Tony Mauro of Legal Times, who has been more unremittingly persistent than I in enabling us to pierce what Thomas Jefferson, very apprehensive of secrecy in government, objected to in "the noiseless … instrumentality of the Supreme Court."
In "Survey Finds Majority of Americans Want Oral Arguments Televised" (New York Law Journal, March 9), Mauro finds that "more than 60 percent of voters think that televising U.S. Supreme Court proceedings would be 'good for democracy.' Only 26 percent said televising oral arguments would undermine the Court's 'dignity or authority.'"
The poll was conducted by PublicMind, a research division of New Jersey's Farleigh Dickinson University. Says Bruce Peabody, chairman of Farleigh Dickinson's department of social science and history:
"It is striking that majorities of Republicans, as well as Democrats, young and older voters, and political independents all believe that televising the Supreme Court would support self-government."
Isn't self-government the essence of who we are as Americans?
C-SPAN, waiting to bring us into the hallowed courtroom, has also found, in its polling, that a sizable audience is waiting. Bruce Collins, C-SPAN vice president and counsel, tells Tony Mauro: "At a time when it seems difficult to get a majority of Americans to agree about almost anything, it is gratifying to see the broad support for using television to bring the Supreme Court closer to the people. We should not have to wait any longer."
Consider what "entertainment" — as Justice Scalia contemptuously defines his opposition — may be coming to the Roberts Court? Is it constitutional for government to mandate that huge numbers of Americans buy health insurance — or be fined for refusing?
Should President Obama continue his unilateral authority to permit the omnivorous National Security Agency to collect and database our phones and activity on the Internet?
So avid is this administration to invade our privacy that the Obama administration is actively engaged in tracking what we say on our cell phones. The Electronic Frontier Foundation — a tireless protector of our digital and other electronic privacy — is battling the Justice Department for getting the FBI and other intelligence agencies to listen in on our cell phones.
Also likely to come to the High Court, and maybe refusing to hear it, is an historic March 5 ruling by U.S. District Judge Wayne Anderson in Chicago — ignored almost entirely by the national press — to allow the continuance of a lawsuit charging Donald Rumsfeld of having authorized torture, with results that included two American citizens reportedly being tortured in Iraq.
Eventually, the Supreme Court may be faced with cases focusing on Bush-Cheney's and Barack Obama's accountability for torture and other disregard for our laws and the Constitution. Shouldn't We the People be invited to oral arguments? As Judge Damon Keith of the Sixth Circuit Court of Appeals said in 2002 as he countermanded the Bush administration's closing of all deportations hearings, "Democracy dies behind closed doors."
