Last week, the Supreme Court heard nearly six hours of oral
argument from some of the brightest legal minds in the world in
deciding the constitutionality of the Patient Protection and
Affordable Care Act a/k/a Obamacare. The Court's decision in
this case will directly touch nearly all of the 310 million people
in the nation. However, only 250 people had a chance to witness
last week's historic argument before the Supreme Court.
You can tune in to C-SPAN and watch a live broadcast of Congress
debating healthy food initiatives. You watch the President address
the nation from the Oval Office. Yet, the actual workings of the
Supreme Court remain a mystery to the majority of the public. For
most, the only way to watch a Supreme Court oral argument is to go
to Washington D.C., wait in a long line outside the courtroom, and,
if you are lucky, get one of the courtroom's 250 publicly
available seats. At lunchtime, you must leave, queue up again, and
hope to reclaim your seat for the afternoon session.
The Senate Judiciary Committee recently took a step to force the
Court to become more accessible, voting to advance a bill that
would permit television coverage of open sessions of the Supreme
Court. As a procedural safeguard, a majority of the justices may
decide that allowing coverage in any particular case would violate
a party's due process rights. Known as the Cameras in the
Courtroom Act, this proposed legislation has sparked debate about
the need for openness in government and the respective powers of
Congress and the Supreme Court.
This development is just the most recent salvo in the conflict
between Congress and the Court over public access. Congress has
introduced similar legislation nearly every year since 2000, after
unsuccessfully urging the Court to televise arguments in Bush v.
Gore. In response, the Court has implemented a number of pilot
programs to evaluate the effect of cameras on court proceedings.
All of these programs, however, have been limited to the lower
federal courts, leaving the Supreme Court untouched.
Historically, the Court has been inaccessible. Early Justices
primarily "rode circuit," bouncing from town-to-town,
holding sessions wherever they could. When the federal government
moved to Washington D.C., the Court did not receive its own
building but was eventually settled into a basement room in the
Capitol with barely enough seats for the lawyers, clerks, and court
reporters in regular attendance. The current 400-seat chamber must
have seemed gargantuan when the Court finally moved into its own
building in 1935.
Some critics argue that Congressional legislation forcing
television coverage of Supreme Court arguments violates the
separation of powers doctrine; contending that this legislation is
an impermissible mandate telling the Court what to do. Yet, in many
areas of judicial administration, it is Congress who has been given
the mandate to tell the Court what to do. Congress decides how many
Justices sit on the Court, determines the Court's appellate
jurisdiction, and stipulates many of the Court's procedures.
Indeed, if Congress oversteps its bounds, the Court will overrule
the legislation. It is unclear, then, why so many balk at the
simple proposition of requiring television coverage of oral
arguments of the most independent branch of government.
The Court's concerns over cameras in the courtroom are
similarly enigmatic. Federal Rule of Criminal Procedure 53 has
explicitly banned media coverage of criminal proceedings since the
rules were adopted in 1946. Ostensibly, this ban is in effect for
fear that witnesses may alter testimony or jurors modify decisions,
knowing that the proceedings are being broadcast. Still, nearly all
criminal trials are open to the public. All one has to do is walk
in and take a seat. The Supreme Court recognized when ruling in the
1981 case Chandler v. Florida that televising a criminal
proceeding does not necessarily violate the defendant's due
process right to a fair trial. Whatever the rationale underlying
Rule 53, it is unlikely to apply to Supreme Court oral arguments.
Although they do sometimes involve criminal matters, they do not
involve witnesses or jurors. They involve fundamental questions of
law that can have wide-ranging and long-term effects.
As a Supreme Court Justice, Elena Kagan as well as the other
members of the Supreme Court will ultimately decide the propriety
of the health care legistration. At her confirmation hearing,
Justice Kagan called watching Supreme Court oral arguments "an
inspiring sight." Fortunately, she was lucky enough to get a
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, "Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends"
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