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Jewish World Review Oct. 31, 2005/ 28 Tishrei, 5766

Nat Hentoff

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Justice Scalia excludes you from the Court | In New York City, Supreme Court Justice Antonin Scalia — in town as the grand marshal of Columbus Day Parade — was interviewed on WNBC-TV's "The Wall Street Journal Report with Maria Bartiromo."

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 individual security?'

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 court.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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