Jewish World Review Oct. 31, 2005/ 28 Tishrei,
Justice Scalia excludes you from the Court
Introducing him, Bartiromo noted that the tribunal on which Scalia
sits "is one of the most powerful and least visible institutions in
America" and, as the highest court, "can make tremendously important
social and political decisions."
But when she asked this most vivid of the nine justices about the
persistent call for the Court to allow its oral arguments to be
televised so that the reasoning of these "least-visible" makers
of decisions that affect us for years can actually be known by we,
the people Scalia brusquely attacked the notion that the Supreme
Court be that accessible.
"We don't want to become entertainment." he said, "I think there's
something sick about making entertainment out of real people's legal
problems. I don't like it in the lower courts, and I don't
particularly like it in the Supreme Court."
Justice Scalia is a proud "originalist." He believes that the
Framers of the Constitution intended that it be interpreted
precisely as written. Dissenting was indisputably one of the
greatest chief justices, John Marshall (on the court from 1801 to
1835), who famously said, "This is a living Constitution." (It is
not cast in stone.)
I've long tried to understand why Justice Scalia, often the most
lively and probing questioner during oral arguments, refuses to
acknowledge that the Framers' Constitution could not have
envisioned, for example., the advances in surveillance technology
that led Justice Louis Brandeis to say in the first wiretapping case
(Olmstead v. United States, 1928) that:
"In the application of a Constitution, our contemplation cannot be
only of what has been, but of what may be. The progress of science
is not likely to stop with wiretapping. ... Can it be that the
Constitution affords no protection against such invasions of
In the Patriot Act and other subsequent executive orders, the
government has gone way beyond wiretapping; and this Supreme Court
and its successors have to decide whether we will become even more
of a surveillance society a chilling prospect of widespread
interest among we, the people.
On National Public Radio's "News and Notes with Ed Gordon" (Oct. 13)
on which black commentators with widely divergent views explore
vital national issues the question arose: "How important is it
for Americans to understand the workings of the Supreme Court? A lot
of times this can seem very abstract, but how do these cases and
judgments filter into our everyday lives?"
Answering, Sherrilyn Ifill, an associate professor of law at the
University of Maryland, pointed to a number of such cases on the
current docket of Scalia and his colleagues on the Supreme Court.
"Many people," she said, "are looking at is a case called Schaffer
vs. Weast that involves parents who were working with a county
school system here in Maryland on their child's special ed,
individualized education plan. ... Do the school authorities have to
prove that the plan is adequate or do the parents have to prove that
the plan is adequate? This is a case that stands to affect hundreds
of thousands of children throughout the United States. ... So it's
critically important to people to understand that the Court's not
deciding questions that exist in lofty ivory towers."
With the future of their children's educations at stake, parents are
placing those children's futures in the hands of the Supreme Court.
Justice Scalia and his colleagues would not have been "making
entertainment" if they permitted this crucial argument and many
others like it to be publicly accessible on television. When the
final decision is made, these parents would understand how it was
reached and on what sides each of the justices resided.
Professor Ifill also cited Gonzales v. Oregon on whether the
attorney general can prohibit the distribution of federally
controlled substances used for physician-assisted suicide, even if a
state law permits such use. The future will bring other
life-and-death cases that will be of absorbing interest to many
Americans, who would like to be present during these arguments.
I will grant Justice Scalia that the Framers of the Constitution and
the Americans who ratified the Constitution did not have TV sets.
But is he absolutely certain that if they had such access to the
justices at work, they would have decided that there would be
"something sick" about television in courts?
The late Justice William Brennan once told me that in light of how
distant the Supreme Court is to the majority of Americans, he very
much favored television during oral arguments. Does anyone on the
present Court agree? After all, it's not their court, it's our
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