State of the Union

Last year, Justice Scalia told The Hill that he hasn't, "gone to the State of the Union in at least 10 years, and I’m not starting tomorrow night either." He continued the practice last night when he once again declined to attend the President's annual State of the Union address. Only five of the nine Supreme Court justices were in attendance: Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Kagan.

Every year the State of the Union (or "SOTU") stirs Supreme Court commentators into a discussion about the public presence (or lack thereof) of the Court. For some, the absence of justices displays a barefaced "politicization" of the Court - justices who don't want to attend only do so because they disagree with the current president's ideology or political party.  Adam Liptak wrote an excellent article at the New York Times exploring this argument, citing a study by two professors (Todd Peppers of Roanoke College and Michael Giles of Emory University) who instead found that, "justices are not more likely to attend addresses given by presidents of the same political party as the one who appointed them."

For others, the argument is tantamount to those made when debating the advantages of televised oral argument: Television is one of the cardinal means of reaching a large American audience, and if the Supreme Court is going to make decisions that affect the United States the people should have access to that information.

Most commentators agree. Professor Giles told Liptak that, "This is a very visual age...It shows an image that is beneficial to the court." David Lat from Above the Law wrote last year that "It's fun to see some fraction of The Nine rubbing shoulders with luminaries from the other branches of government. And it's nice for ordinary Americans to be reminded of our courts, our judges, and the important work that they do." Eva Rodriguez from PostPartisan wrote that it was particularly important for Chief Justice Roberts to attend and, "prove that [he] is above the fray, unfazed by attacks and unbowed by pressure - judicial independence incarnate."

In fact, the only people who seem to not want the justices there are the justices themselves. Justice Thomas has groaned about the bickering between members of Congress, Justice Alito has bemoaned the awkwardness of it all, and Justice Scalia has called it a "juvenile spectacle."  It's a similar argument that many people make when they receive an invitation to a loathsome family reunion.

"I'm sorry, my allergies are acting up in a terrible way."

"Deepest apologies, I'll be in Hawaii for a speaking engagement." (Or Guam)

In fact, the State of the Union is in many ways the annual family reunion for the United States Government; It is the only time when Congress, the President, and the Supreme Court can be spotted in the same room. I recognize the importance of having separate branches of government kept separate, but the symbolic display of cohesion is equally as important - especially in a politically charged election year. Justice Breyer put it best when he explained to George Stephanopoulos:

"I think that the reason we should be there is because, particularly today, where for better or for worse, people get lots of their information visually. It shows in that room, this is your federal government. The President is there, the Cabinet is there, the Congress is there, the Joint Chiefs are there...the judges have a role in this government." 

Cameras on the Court

When asked to express his thoughts on the possibility of televising the Supreme Court’s oral argument in 1996, Justice David Souter calmly announced before the House Appropriations Subcommittee that, “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Not much has changed over the last ten years: not the Supreme Court’s sentiment towards incorporating the new technology, nor Congress’s desire for them to do so.

Yesterday the Senate Judiciary’s Subcommittee on Administrative Oversight and the Courts requested the testimony of four experts and one former Senator to discuss the reintroduced “Sunshine in the Courtroom Act of 2011,” which would require the Supreme Court to televise its oral arguments unless a majority of justices ruled that it violated the due process rights of an appearing party.

Although it’s unlikely the bill will become law before March, it may be passed in time for this spring’s 5 ½ hour marathon hearing of President Obama’s Affordable Care Act, the most closely-followed issue on the Court’s docket this year. Tom Goldstein, founder of SCOTUSBlog, predicted in yesterday’s hearing that as many as 50 million people would tune in to televised coverage of the justices argument.

Instead, some will wait in line outside the Court for days for a chance at the 200 seats generally reserved for members of the public – a number that could be reduced to as few as 50 to accommodate requests by the press and Supreme Court Bar. Everyone else will have to settle for a 3 minute walk-by of the room during oral argument, the transcript released the same day, or the audio recording released on the following Friday.

But those options are not easily dismissed. They show a Court that has taken great strides in the past ten years to accommodate modern technology. The Court created an impressive, easily navigable website and began uploading audio recordings in mp3 format (although Oyez has argued that this dilutes sound recordings, it is also the most widely-used sound format on the itnernet). With all of these improvements, it’s likely the Court will develop a camera-friendly policy on its own, as many of the currently televised judiciaries have done (the Supreme Court of the United Kingdom currently televises important cases, as well as many U.S. State Courts). Chief Justice Roberts likened the Court’s pace on cameras to that of the unofficial mascot of the Supreme Court, an animal featured prominently in sculptures and reliefs inside the building, “throughout is a turtle, and that’s to indicate that we move slowly but surely and on a stable basis.”

Nevertheless, former Senator Arlen Specter, who spent 25 years in Congress advocating for cameras in the Court, told the Subcommittee yesterday this is simply not enough. For a branch of government that routinely makes decisions on politically-charged issues like the death penalty, campaign finance, and the limits of executive power, the Court should open its doors as wide as possible. “It’s the public domain,” he argued Tuesday, “and it ought to be accessible to the public.” Many Senators nodded along with their former colleague, lauding the potential advantages that televised proceedings might offer, especially increased civic knowledge of the Court’s work.

But panelists cautioned against Congress taking unilateral action to force cameras on the Court, arguing that any advantages are far outweighed by the potential constitutional controversy. Maureen Mahoney, who has argued 21 cases before the Court, told the Subcommittee in a written testimony that, “the Constitution does not grant Congress any express power to regulate the manner in which the Supreme Court exercises its decision making authority in proceedings.” While the Constitution grants Congress the power to decide basic administrative questions, such as how many justices are required for quorum or what day to start the new term, there is no historical evidence that this power was intended to infringe the Court’s authority on matters of procedure. And it’s the Court’s prerogative to decide matters of constitutional interpretation, even when it’s at the center of the debate.

Goldstein took a softer approach. He told Congress that television would be good for the Court, both in improving its own image and democratic confidence as a whole.  But even if there are compelling reasons why television would be beneficial, Congress should give the Court deference to decide the issue as they see fit. “It is easy to criticize to the Supreme Court, they don’t have a PR campaign, they don’t respond.” Forcing the Supreme Court to bring cameras into the courtroom might be a little like asking a turtle to stick its neck out too far – it might just make it scuttle back to its shell.

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This article has been backdated to the date it was originally written, December 7, 2011. My apologies for not posting it earlier.