Don't Shut Americans out; the Weak Case against Televising Supreme Court Oral Arguments

Article excerpt


During a March 28 C-SPAN series, "America and the Courts," Justices Anthony Kennedy and Clarence Thomas were seen insisting that it is vital to their relationships with one another on the Court that Congress not mandate TV coverage of their oral arguments because that (Justice Kennedy actually said) would introduce an "insidious dynamic" into the proceedings. Informing "We the People" is insidious?

On that C-SPAN program, in excerpts from the Kennedy-Thomas testimony before a House committee, Justice Kennedy sternly lectured that Congress should not legislate this intrusion into a key process in how and why they make their decisions, which affect so many of us. He explained: "We teach that we're judged by what we write and by what we decide... I do not want an insidious dynamic introduced into my court that would affect the relations that I have with my colleagues

"It would be unhelpful for the collegial relations... I don't want to

think that one of my colleagues asked a question because he or she was on TV And I don't want that temptation to exist... We (justices) think that we should be entitled to at least a presumption of correctness and to some deference in determining how

best to preserve the dynamic of the wonderful proceeding that we know as oral argument" Agreeing, Justice Thomas said: "The concern is that you begin to have a sort of a tabloid effect because of the personalities involved as opposed to the substance of the case." From their high seats above us all, both these justices ignore that they serve on a public court, paid by taxpayer funds; and because of increasingly limited coverage of the Supreme Court in newspapers and on broadcast and cable television, many Americans know little of these nine distant arbiters of our rights and liberties in so many spheres of our existence.

As a member of the press, having been at some oral arguments, I can testify that in the exchanges between the justices and the lawyers before them, as well as during the often testy, barely disguised criticisms by the justices of one another, the temperaments and characters of these loomingly powerful deciders of what we can and can't do with our lives illuminate why they sometimes come to the conclusions they reach. Not disembodied sages, Supreme Court justices are human, sometimes very human.

In similar testimony before a previous congressional committee, Justice Kennedy has more than implied that if Congress were to insist that the oral arguments be open to us all, that disrespect for the Justices' "presumption of correctness" would violate the Constitution's separation of powers! …