[Congressional Record Volume 153, Number 17 (Monday, January 29, 2007)]
[Senate]
[Pages S1257-S1262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TELEVISING OF SUPREME COURT PROCEEDINGS
Mr. SPECTER. Mr. President, I have sought recognition to comment
about S. 344, which provides for the televising of Supreme Court
proceedings. This bill is cosponsored by Senator Grassley, Senator
Durbin, Senator Schumer, Senator Feingold, and, with unanimous consent
Senator Cornyn--a bipartisan representation. It is identical with
legislation introduced in the last Congress after having been voted out
of committee, and was voted out of committee on a 12-to-6 vote. It was
previously introduced in 2005. It had a hearing on November 9 of 2005
and was reported out of committee on March 30 of 2006.
The essential provision is to require televising proceedings at the
Supreme Court of the United States unless the Court determines on an
individual basis that there would be an inappropriate occasion and a
violation of the due process rights of the parties.
The thrust of this legislation is to bring public attention and
understanding of how the Supreme Court of the United States functions,
because it is the ultimate decisionmaker on so many--virtually all of
the cutting edge questions of our day. The Supreme Court of the United
States made the decision in Bush v. Gore, essentially deciding who
would be President of the United States. The Supreme Court decides
cases on the death penalty, as to who will die.
It decides by 5-to-4 decisions so many vital cases, including
partial-birth or late-term abortion, deciding who will live. It decides
the question of who will be elected, controlling the constitutional
decision on campaign contributions. It decides the constitutionality--
again, and all of the cases I mentioned are 5 to 4--on school prayer,
on school vouchers, on whether the Ten Commandments may be publicly
displayed, on whether affirmative action will be permitted, on whether
eminent domain will be allowed--the taking of private property for
governmental purposes. The Supreme Court of the United States decides
the power of the President as illustrated by Hamdan v. Rumsfeld--that
the President does not have a blank check and that the President is not
a monarch.
The Supreme Court of the United States, again in a series of 5-to-4
decisions, has decided what is the power of Congress, declaring in U.S.
v. Morrison the legislation to protect women against violence
unconstitutional because the Court questioned our ``method of
reasoning,'' raising a fundamental question as to where is the
superiority of the Court's method of reasoning over that of the
Congress. But that kind of decision, simply stated, is not understood.
Or the Supreme Court of the United States dealing with the Americans
With Disabilities Act, making two decisions which are
indistinguishable, upholding the statute on a paraplegic crawling into
the courthouse in Tennessee and striking down the constitutionality of
the statute when dealing with employment discrimination. They did so on
a manufactured test of congruence and proportionality, which is
literally picked out of thin air.
Under our Constitution, I respect the standing of the Supreme Court
of the United States to be the final arbiter and to make the final
decisions. But it is, I think, fundamental that the Court's work, the
Court's operation ought to be more broadly understood. That can be
achieved by television. Just as these proceedings are televised on C-
SPAN, just as the House of Representatives is televised on C-SPAN, so,
too, could the Supreme Court be televised on an offer made by C-SPAN to
have a separate channel for Supreme Court oral arguments. There are
many opportunities for the Court to receive this kind of coverage, to
inform the American people about what is going on so that the American
people can participate in a meaningful way as to whether the Court is
functioning as a super-legislature--which it ought not to do, that
being entrusted to the Congress and State legislatures, with the
Court's responsibility being to interpret the law.
It should be noted that the individual Justices of the Supreme Court
have already been extensively televised. Chief Justice Roberts and
Justice Stevens were on ``Prime Time'' on ABC TV. Justice Ruth Bader
Ginsburg was on CBS with Mike Wallace. Justice Breyer was on ``FOX
News'' Sunday. Justice Scalia and Justice Breyer had an extensive
debate last December, which is available for viewing on the Web--and in
television archives. So there has been very extensive participation by
Court members, which totally undercuts one of the arguments, that the
notoriety would imperil the security of Supreme Court Justices.
It is also worth noting that a number of the Justices have stated
support for televising the Supreme Court. For example, Justice Stevens,
in an article by Henry Weinstein on July 14, 1989, said he supported
cameras in the Supreme Court and told the annual Ninth Circuit Judicial
Conference at about the same time that, ``In my view, it is worth a
try.''
Justice Stevens has been quoted recently stating his favorable
disposition to televising the Supreme Court.
Justice Breyer, during his confirmation hearings in 1994, indicated
support for televising Supreme Court proceedings. He has since
equivocated, but has also noted that it would be a wonderful teaching
device.
In a December 13, 2006 article by David Pereira, Justice Scalia said
he favored cameras in the Supreme Court to show the public that a
majority of the caseload involves dull stuff.
In December of 2000, an article by Marjorie Cohn noted Justice Ruth
Bader Ginsburg's support of camera coverage, so long as it is gavel to
gavel--which can be arranged.
Justice Alito, in his Senate confirmation hearings last year, said
that as a member of the Third Circuit Court of Appeals he voted to
admit cameras. He added that it would be presumptuous of him to state a
final position until he
[[Page S1258]]
had consulted with his colleagues, if confirmed. But at a minimum, he
promised to keep an open mind, noting that he had favored television in
the Third Circuit Court of Appeals.
Justice Kennedy, according to a September 10, 1990, article by James
Rubin, told a group of visiting high school students that cameras in
the Court were ``inevitable,'' as he put it. He has since equivocated,
stating that if any of his colleagues raise serious objections, he
would be reluctant to see the Supreme Court televised. Chief Justice
Roberts said in his confirmation hearings that he would keep an open
mind. Justice Thomas has opposed cameras. Justice David Souter has
opposed televising the Supreme Court. Justice Souter has been the most
outspoken opponent of televising the Supreme Court, saying if cameras
rolled into the Supreme Court, they would roll over his--as he put it--
over his dead body--a rather colorful statement. But there has been, as
noted, considerable sentiment by quite a number of the Justices as to
their personal views expressing favorable disposition toward televising
the Supreme Court.
The question inevitably arises as to whether Congress has the
authority to require televising Supreme Court proceedings, and I submit
there is ample authority on Congress's generalized control over
administrative matters in the Court. For example, it is the Congress
which decides how many Justices there will be on the Court. It is
remembered that President Roosevelt, in the mid to late 1930s, proposed
a so-called ``packing of the Court'' plan to raise the number to 15.
But that is a congressional judgment. The Congress decides when the
Supreme Court will begin its term: on the first Monday of every
October. The Congress decides what number will constitute a quorum of
the Supreme Court: six. The Congress of the United States has
instituted timelines that are required to be observed by the Supreme
Court when determining timeliness in habeas corpus cases. So there is
ample authority for the proposition that televising the Supreme Court
would be constitutional.
There is an article which is due for publication in May 2007 by
Associate Professor Bruce Peabody of the political science department
of Fairleigh Dickinson University, and in that article, Professor
Peabody makes a strong analysis that congressional action to televise
the Supreme Court would be constitutional. Also, in that article
Professor Peabody refers at length to the legislation which I
introduced in 2005 and says that it would be constitutional and
observes that:
A case could be made for reform giving rise to more wide-
ranging and creative thinking of the role and status of the
judiciary if the Supreme Court was, in fact, televised.
He further notes that:
Televising the Supreme Court could stimulate a more general
discussion about whether other reforms of the court might be
in order.
He notes that:
The so-called Specter bill would be meaningful in giving
wider play to a set of conversations that have long been
coursing through the academy about the relationship between
the court and the Congress.
The Supreme Court itself, in the 1980 decision in Richmond Newspapers
v. Virginia, implicitly recognized, perhaps even sanctioned, televising
the Court because in that case, the Supreme Court noted that a public
trial belongs not only to the accused but to the public and the press
as well; and that people acquire information on Court proceedings
chiefly through the print and electronic media. But we know as a
factual matter that the electronic media, television, is the basic way
of best informing the public about what the Supreme Court does.
There was enormous public interest in the case of Bush v. Gore argued
in the Supreme Court in December of 2000 after the challenge had been
made to the calculation of the electoral votes from the State of
Florida and whether the so-called chads suggested or showed that Vice
President Gore was the rightful claimant for those electoral votes or
whether then-Governor Bush was the rightful claimant.
The streets in front of the Supreme Court chambers across the green
from the Senate Chamber were filled with television trucks. At that
time, Senator Biden and I wrote to Chief Justice Rehnquist urging that
the proceedings be televised and got back a prompt reply in the
negative.
But at least on that day the Supreme Court did release an audiotape
when the proceedings were over, and the Supreme Court has made
available virtually contemporaneous audio tapes since. But I suggest
the audio tapes do not fill the bill. They do not have the audience.
They do not have the impact. They do not convey the forcefulness that
televising the Supreme Court would.
There has been considerable commentary lately about the Court's
workload and the Court's caseload. Chief Justice Roberts, for example,
noted that the Justices:
Hear about half the number of cases they did 25 years ago.
And, he remarked that from his vantage point, outside the Court:
They could contribute more to the clarity and uniformity of
the law by taking more cases.
They have a very light backlog. In the 2005 term, only 87 cases were
argued and 69 signed opinions were issued, which is a decrease from
prior years. They have left many of the splits in the circuits
undecided. Former Senator DeWine, when serving on the Judiciary
Committee, asked Justice Alito about the unresolved authority at the
circuit level. Now Justice Alito characterized that as ``undesirable.''
But that happens because of the limited number of cases which the
Supreme Court takes.
There has also been concern, as noted in an article by Stuart Taylor
and Ben Wittes captioned, ``Of Clerks And Perks,'' that the four clerks
per Justice constitute an undesirable allocation of resources, and the
Taylor-Wittes article cites the Justice's extensive extracurricular
traveling, speaking, and writing, in addition to their summer recesses
and the vastly reduced docket as evidence that something needs to be
done to spur the Court into taking more cases.
If the Court were to be televised, there would be more focus on what
the Court is doing. That focus can be given without television, but
once the Supreme Court becomes the center of attraction, the center of
attention, articles such as that written by Taylor and Wittes would
have much more currency.
The commentators have also raised a question about the pooling of the
applications for certiorari. There were, in the 2005 term, some 8,521
filers. Most of those are petitions for certiorari. That is the fancy
Latin word for whether the Court will grant process to hear the case
from the lower courts. As we see, the Court acts on a very small number
of those cases. Only 87 cases were argued that year in a term when more
than 8,500 filings were recorded, most of those constituting cases
which could have been heard. And, the Supreme Court has adopted a
practice of the so-called ``cert pool,'' a process used by eight of the
nine Justices. Only Justice Stevens maintains a practice of reviewing
the cert petitions himself on an individual basis, of course, assisted
by his clerks. But when the Court is charged with the responsibility of
deciding which cases to hear, it is my view that it is very problematic
and, in my judgment, inappropriate for the Justices not to be giving
individualized attention, at least through their clerks, and not having
a cert pool where eight of the Justices have delegated the job of
deciding which cases are sufficiently important to hear to a pool.
We do not know the inner workings of the pool, but I believe it is
fair and safe to infer that the judgments are made by clerks. Precisely
what the level of reference and what the level of consultation with the
Justices is we do not know, but when an application is made to the
Supreme Court of the United States to hear a case, it is my view that
there ought to be individualized consideration.
That also appeared to be the view of now Chief Justice John Roberts,
who said in a 1997 speech, according to a September 20, 2000, article
in the Legal Times by reporter Tony Mauro where then-private
practitioner John Roberts said he ``found the pool disquieting, in that
it made clerks a bit too significant in determining the Court's
docket.''
I would suggest that is an understatement, to give that kind of power
to the clerks and, beyond that, to give that kind of power to the
clerks in a pool, where the individual Justices do
[[Page S1259]]
not even make the delegation to their own clerks with whatever review
they would then utilize but make that a delegation to a cert pool.
There have been many scholarly statements about the desirability of
having greater oversight on what happens in the Supreme Court. Chief
Justice William Howard Taft, who was the 10th Supreme Court Chief
Justice and the 27th President of the United States, said that review
and public scrutiny was the best way to keep the judges on their toes.
And Justice Felix Frankfurter said that he longed for the day when the
Supreme Court would receive as much attention as the World Series
because the status of the Supreme Court depended upon its reputation
with the people.
These are the exact words of Chief Justice William Howard Taft:
Nothing tends more to render judges careful in their
decision and anxiously solicitous to do exact justice than
the consciousness that every act of theirs is subject to the
intelligent scrutiny of their fellow men and to candid
criticism.
Justice Felix Frankfurter's exact words were:
If the news media would cover the Supreme Court as
thoroughly as it did the World Series, it would be very
important since ``public confidence in the judiciary hinges
on the public perception of it.''
We have a continuing dialogue and a continuing discussion as to the
role of the Supreme Court in our society. We have the cutting edge
questions consistently coming to the Court. We have them deciding the
issues of who will live, who will die, what will be the status of
prayer in the schools, what will be the status of our election laws,
and through the vagaries of due process of law and equal protection,
there are many standards which the Court can adopt.
I was candidly surprised, in reviewing the recent Supreme Court
decisions for the confirmation hearings on Chief Justice Roberts and
Justice Alito, to find how far the Court had gone in striking down the
power of Congress. It was 11 years between the confirmation proceeding
on Justice Breyer and the confirmation proceeding on Chief Justice
Roberts. With our workload here, it is not possible, even with
responsibilities on the Judiciary Committee, even with responsibilities
as chairman of the Judiciary Committee, to keep up with the Supreme
Court opinions.
When I read United States v. Morrison, where the Supreme Court struck
down the legislation protecting women against violence on a 5-to-4
decision because Chief Justice Rehnquist questioned our ``method of
reasoning,'' I wondered what kind of a transformation there was when
you leave the Senate Chamber, where our columns are aligned exactly
with the Supreme Court columns across the green, what kind of a
transformation there was with method of reasoning that there is such
superior status when going to the Court. Certainly I have noted no
complaint about Senators' method of reasoning when we confirm Supreme
Court Justices.
Then we picked up the Americans with Disabilities Act. We had two
cases--one involving Alabama which involved employment discrimination
and one involving Tennessee which involved access by a paraplegic to
the courtroom--dealing with exactly the same records. In the Alabama
case, the Supreme Court declared 5 to 4 that the act of Congress was
unconstitutional. In the Tennessee case, exactly on the same record,
they decided the act was constitutional. What standard did they use?
They adopted a standard on a 1997 Supreme Court decision in a case
called Boerne. In that case, the Supreme Court decided they would
render a constitutional judgment in a context where Congress had
legislated under article V of the 14th amendment to preserve due
process of law where the challenge was made by the State that the
States were immune under the 11th amendment. The Supreme Court decided
it would impose a test of whether the statute was ``congruent and
proportional.'' This standard had never been heard in jurisprudence
before that time, ``congruent and proportional.'' I defy anyone to say
what those words mean in a standard which can be applied in a way which
can be predicted by lawyers and understood by State legislators and
understood by clients.
In a dissenting opinion, Justice Scalia chastised the Court for
being, in effect, the taskmaster of the Congress, to see if the
Congress had done its homework, whereas in prior cases the adequacy of
the record was determined by a substantial record and the Court would
defer to the judgment of Congress, which established, through lengthy
hearings and proceedings, a very extensive record. In talking to my
colleagues, those decisions by the Supreme Court undercutting
congressional power were not known.
Then we have the Supreme Court being the final arbiter on what
happens on Executive power, what happens at Guantanamo, what is the
responsibility of the President of the United States on military
commissions, what is the responsibility under the Geneva Conventions.
Here again, I respect the Supreme Court's decisions, respect their role
as the final arbiter, but say that there ought to be an understanding
by the public. It may be that there will never be a case which has more
impact on the working of Government than the decision as to whether the
Florida electoral votes would be counted for George Bush or for Albert
Gore in the famous case of Bush v. Gore.
A prior version of this legislation came out of committee last year
on a bipartisan 12-to-6 vote. It has very substantial cosponsorship. I
urge my colleagues to consider it carefully. I urge the distinguished
majority leader to look for a spot to bring such legislation to the
Senate.
There is companion legislation which Senator Grassley is offering
which gives the courts--the Supreme Court, courts of appeals, trial
courts--the discretion to have television. My legislation, S. 344, is
more targeted. It has a requirement as to the Supreme Court televising
its proceedings unless there is some due-process violation which is
considered on a case-by-case basis.
When the article comes out by Professor Bruce Peabody in the
University of Notre Dame Law Journal, I commend it to everyone's
attention. I have advance text, have cited some of Professor Peabody's
conclusions on his decision that the legislation has very important
public policy benefits and, as he analyzes it, is constitutional.
I ask unanimous consent that the full text of the written statement
be printed in the Congressional Record as if recited, and I ask that
prior to the introduction of that prepared statement, my statement
appear, that the comments I have made up until now have been a summary
of that more extensive statement, an extemporaneous summary, and the
full statement follows. Sometimes people reading the Congressional
Record wonder why there is so much repetition, and I think a word of
explanation that the initial statement is a summary and the formal
statement is added would explain why the repetition exists.
I ask all of this explanation be printed in the Record. Finally, I
ask that Senator Cornyn be included as a cosponsor.
The PRESIDING OFFICER (Mr. Webb). Without objection, it is so
ordered.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senator Specter's Talking Points Upon Introduction of S. 344, a Bill To
Permit the Televising of Supreme Court Proceedings
Mr. SPECTER. Mr. President, once again I seek recognition
to introduce legislation that will give the public greater
access to our Supreme Court. This bill requires the high
Court to permit television coverage of its open sessions
unless it decides by a majority vote of the Justices that
allowing such coverage in a particular case would violate the
due process rights of one or more of the parties involved in
the matter.
The purpose of this legislation is to open the Supreme
Court doors so that more Americans can see the process by
which the Court reaches critical decisions that affect this
country and all Americans. The Supreme Court makes
pronouncements on Constitutional and Federal law that have a
direct impact on the rights and lives of all of us.
Televising the Court's oral arguments will enhance the
public's understanding of the issues and the impact of, and
reasons for, the Court's decisions.
I believe that now is the right time for this legislation.
In his 2006 Year-End Report on the Federal Judiciary, Chief
Justice Roberts noted that ``The total number of cases filed
in the Supreme Court increased from 7,496 filings in the 2004
Term to 8,521 filings in the 2005 Term--an increase of 13.7
percent.'' Despite this increase in petitions, during the
2005 Term, only 87 cases were argued, and 69
[[Page S1260]]
signed opinions were issued. These 69 signed opinions
compares to 74 opinions in the 2004 Term.
A recent article by law professor Jeffrey Rosen in The
Atlantic Monthly points out that ``Fifty-four percent of the
decisions in the first year of the Roberts Court were
unanimous'' and ``the Court issued more consecutive unanimous
opinions than at any other time in recent history.'' I
commend the Supreme Court and Chief Justice Roberts for what
appears to be an increase in consensus, as reflected in the
unanimity in these cases.
But I am concerned about the steady decline each year in
the number of Supreme Court full opinions; the number of
cases decided by the slimmest majority of five justices; and
the number of opinions that have multiple dissents and
concurrences that lead to more confusion than clarity in the
law. I believe that permitting cameras into oral arguments is
one way to shed light on the nature of the work of the
Supreme Court and to improve public awareness of the Court's
workload, the Court's institutional prerogatives, and even
judicial personalities. The public wants to know: Who are
these judges and how do they do what they do?
A January 7, 2007 article by Robert Barnes in the
Washington Post observes that ``After decades of decline in
its caseload, the [Supreme] Court is once again on track to
take its fewest number of cases in modern history.'' The
article notes that during his confirmation proceedings, Chief
Justice Roberts observed that the justices ``hear about half
the number of cases they did 25 years ago'' and he remarked
that from his vantage point outside the court, ``they could
contribute more to the clarity and uniformity of the law by
taking more cases.'' Similarly, during his confirmation
hearings and in response to questions from Senator DeWine,
Justice Alito described unresolved splits of authority at
the circuit court level as ``undesirable.''
The Barnes article posits six possible reasons for the
Court's waning docket: (1) 1988 legislation passed at the
Court's request that limits the Court's mandatory review
docket (2) the change in justices over the past couple of
decades, (3) a decrease in splits among the circuits due to
an increasingly homogenous appellate judiciary appointed by
Republican administrations, (4) a decrease in appeals by the
Federal government as a result of more government wins in the
lower courts, (5) the ``cert pool'' process used by eight of
the nine Justices, which relies upon law clerks to recommend
which cases are ``cert-worthy;'' and (6) the possibility that
justices on a closely divided court are hesitant to grant
certiorari if they think their view will not prevail in the
ultimate outcome of a case. I have no particular view on the
merits of these possible explanations but they do make me
increasingly curious about the Court and its workload.
In a September 2005 article in The Atlantic Monthly, Stuart
Taylor, Jr. suggests, ``As our Supreme Court justices have
become remote from the real world, they've also become more
reluctant to do real work--especially the sort of quotidian
chores done by prior justices to ensure the smooth
functioning of the judicial system. The Court's overall
productivity--as measured by the number of full, signed
decisions--has fallen by almost half since 1985. Clerks draft
almost all the opinions and perform almost all the screening
that leads to the dismissal without comment of 99 percent of
all petitions for review. Many of the cases dismissed are the
sort that could be used to wring clear perversities and
inefficiencies out of our litigation system--especially out
of commercial and personal-injury litigation.'' Mr. Taylor
concludes the article by exclaiming, ``Quietly our Supreme
Court has become a sort of aristocracy--unable or unwilling
to clearly see the workings, glitches, and peculiarities of
the justice system over which it presides from such great
altitude.''
Mr. Taylor's frustration with the Supreme Court may have
reached its zenith when, in July of 2006, he coauthored an
article with Benn Wittes entitled, ``Of Clerks and Perks.''
In this piece the authors suggest that ``an exasperated
Congress'' should ``fire'' the Court's clerks by reducing the
budget for clerks from four (4) per justice to one (1). Mr.
Taylor and Mr. Wittes cite the justices' extracurricular
traveling, speaking and writing, in addition to their summer
recesses and vastly reduced docket as evidence that something
needs to be done to spur the Court into taking up more cases.
According to the authors, terminating \3/4\ of the clerks
would end the justices' ``debilitating reliance on
twentysomething law-school graduates'' and ``shorten their
tenure by forcing them to do their own work, making their
jobs harder and inducing them to retire before power corrupts
absolutely or decrepitude sets in.''
I do not necessarily agree with Mr. Taylor or Mr. Wittes
about what ails the Supreme Court. I do, however, strongly
agree with their observation that ``Any competent justice
should be able to handle more than the current average of
about nine majority opinions a year. And those who don't want
to work hard ought to resign in favor of people who do.''
Shortly after Taylor and Wittes issued their acerbic
diatribe against the Court for its failure to grant
certiorari in more cases, a September 20, 2006 article by
Legal Times reporter Tony Mauro observed that eight of the
nine sitting justices, including the recently confirmed Chief
Justice Roberts and Justice Alito, would continue to
participate in the Supreme Court's law clerk cert-pool. Mauro
describes the cert-pool as an ``arrangement, devised in 1972,
[that] radically changed what happens when a petition for
review or certiorari comes in to the court. Instead of being
reviewed separately by nine clerks and/or nine justices, it
is scrutinized for the pool, presumably in greater depth, by
one clerk, who then writes a memo for all the justices in the
pool.'' Mr. Mauro goes on to remind us that in a 1997 speech
John Roberts gave while in private practice, ``he found the
pool `disquieting' in that it made clerks `a bit too
significant' in determining the court's docket.''
A December 7, 2006 article by Linda Greenhouse observed
that ``The Court has taken about 40 percent fewer cases so
far this term than last. It now faces noticeable gaps in its
calendar for late winter and early spring. The December
shortfall is the result of a pipeline empty of cases granted
last term and carried over to this one.'' Looking back at
last term, Ms. Greenhouse observed, ``The number of cases the
court decided with signed opinions last term, 69, was the
lowest since 1953 and fewer than half the number the court
was deciding as recently as the mid-1980s.'' Ms. Greenhouse
goes on to note that 16 of the 69 cases--about 23 percent--
were decisions with a split of five to four.
On January 11, 2007, in an article by Brooke Masters and
Patti Waldmeir, the Financial Times tells how ``For years,
the court declined to hear many cases that most profoundly
affected corporate America.'' Ms. Masters and Ms. Waldmeir
note that 44 percent of the Supreme Court's docket this term
includes cases involving business, up from 30 percent in the
previous two terms. Nonetheless, they note, ``Far too often .
. . Supreme Court rulings cast as much ambiguity as they
resolve.'' The authors go on to quote Steve Bokat, general
counsel of the U.S. Chamber of Commerce as saying he'd
``rather have a bad decision that's clear than an OK decision
that's not.'' According to Bokat, ``Ninety percent of the
time, if you get clarity in a decision with a definitive
holding, you at least know what your obligations are, and
even if you don't like the opinion you are much less likely
to get in trouble with litigation.'' Bokat said Chief Justice
Roberts ``gets this'' and ``understands the importance of
clarity'' yet Bokat notes that ``in order to get that
unanimity the decisions tend to be more narrow [and] it
doesn't give you much advice on what to do going forward.''
I should also note that recent news articles point out the
high Court has become more media friendly--even though the
same articles deem the prospect of televised proceedings
``remote.'' A December 25, 2006 article by Mark Sherman
observes ``Lately . . . some members of the court have been
popping up in unusual places--including network television
news programs--and talking about more than just the law.''
Mr. Sherman notes with some irony that then-Chief Justice
``Rehnquist could stroll around the court, unrecognized by
tourists. Justice Anthony Kennedy snapped a photograph for
visitors who had no idea who he was and Justice John Paul
Stevens was once asked to move out of the way by a
picture-taking tourist.'' The article suggests that
despite the Supreme Court's reticence about cameras in
oral arguments, Chief Justice ``Roberts believes its
credibility will be enhanced if the justices appear less
remote.''
Frankly, I agree with the view that making the justices
less remote adds to the credibility of the Supreme Court. I
also believe that public understanding may help heal some of
the deep division and even cynicism we have in some segments
of our society. This is why I'm introducing legislation to
permit cameras into oral arguments. As our 27th President and
10th Chief Justice William Howard Taft teaches, ``Nothing
tends more to render judges careful in their decision and
anxiously solicitous to do exact justice than the
consciousness that every act of theirs is to be subject to
the intelligent scrutiny of their fellow men, and to their
candid criticism . . . . In the case of judges having a life
tenure, indeed, their very independence makes the right
freely to comment on their decisions of greater importance,
because it is the only practical and available instrument in
the hands of a free people to keep judges alive to the
reasonable demands of those they serve.
For their part, some of the justices have expressed an
openness to the idea of allowing a broader audience to see
oral arguments.
Chief Justice Roberts, in addition to comments about the
court needing to appear less remote, stated at his 2005
confirmation hearing upon being nominated as Chief Justice,
``Well, you know my new best friend, [former] Sen. Thompson
assures me that television cameras are nothing to be afraid
of. But, I don't have a set view on that.''
Justice Alito, at his Senate Confirmation hearings in 2006,
said that as a member of the 3rd Circuit Court of Appeals, he
voted to admit cameras, but a majority of his colleagues
rejected the idea. In response to a question I posed, Justice
Alito said, ``I argued we should do it'' but he went on to
qualify his personal belief by saying, ``it would be
presumptuous for me to talk about it right now'' with respect
to the Supreme Court. Justice Alito pledged he would ``keep
an open mind despite the position I took on the circuit
court.''
Justice Breyer, during his confirmation hearings in 1994,
indicated support for televised Supreme Court proceedings. He
has more recently stated, at an event in late
[[Page S1261]]
2005, that cameras in the Supreme Court ``would be a
wonderful teaching device'' but might become a symbol for
lower federal courts and state courts on the advisability of
cameras in courtrooms. Justice Breyer noted that ``not one of
us wants to take a step that could undermine the court as an
institution'' and expressed the hope that ``eventually the
answer will become clear . . . .''
Justice Stevens, according to a July 14, 1989 article by
Henry Weinstein in the Times Mirror, appears to support
cameras and he told the annual 9th Circuit Judicial
Conference attendees, ``In my view, it's worth a try.''
Justice Kennedy, according to a September 10, 1990 article
by James H. Rubin, told a group of visiting high school
students that cameras in the Court were ``inevitable.'' But
Justice Kennedy later stated that ``a number of people would
want to make us part of the national entertainment network.''
In testimony before the Commerce, Justice, State and
Judiciary Subcommittee of the House Appropriations Committee
in March of 1996, Justice Kennedy pledged, ``as long as any
of my colleagues very seriously objects, I shall join with
them.''
Justice Thomas, in an October 27, 2006 article by R. Robin
McDonald, is quoted as saying, ``I'm not all that enthralled
with that idea. I don't see how it helps us do our job. I
think it may distract from us doing our job.'' Justice Thomas
added that if 80 percent of the appellate process is wrapped
up in the briefs, ``How many of the people watching will know
what the case is about if they haven't read the briefs?''
Justice Thomas went on to suggest the viewing public would
have a ``very shallow'' level of understanding about the
case.
On October 10, 2005, Justice Scalia, opposed an earlier
version of my bill, stating, ``We don't want to become
entertainment . . . . I think there's something sick about
making entertainment out of real people's problems. I don't
like it in the lower courts, and I don't particularly like it
in the Supreme Court.'' Yet a recent December 13, 2006,
article by David Perara reports that Justice Scalia favors
cameras in the Supreme Court to show the public that a
majority of the caseload involves, ``Internal Revenue code,
the [Employee Retirement Income Security Act], the bankruptcy
code--really dull stuff.''
Justice Ginsburg made a similar observation: ``The problem
is the dullness of most [Supreme] Court proceedings.'' This
comment was in a December 2000 article by Marjorie Cohen who
noted Justice Ginsburg's support of camera coverage so long
as it is gavel-to-gavel.
Justice Scalia's, Justice Thomas' and Justice Ginsberg's
points are well taken. The public should see that the issues
decided by the Court are not simple and not always exciting,
but they are, nonetheless, very important.
So I have to disagree with Justice Souter, who appears to
be the staunchest opponent of cameras in the Supreme Court
and who famously said in 1996, ``I can tell you the day you
see a camera come into our courtroom, it is going to roll
over my dead body.''
Many years ago, Justice Felix Frankfurter may have
anticipated the day when Supreme Court arguments would be
televised when he said that he longed for a day when: ``The
news media would cover the Supreme Court as thoroughly as it
did the World Series, since the public confidence in the
judiciary hinges on the public's perception of it, and that
perception necessarily hinges on the media's portrayal of the
legal system.'' It is hard to justify continuing to exclude
cameras from the courtroom of the Nation's highest court. As
one legal commentator observes: ``An effective and legitimate
way to satisfy America's curiosity about the Supreme Court's
holdings, Justices, and modus operandi is to permit broadcast
coverage of oral arguments and decision announcements from
the courtroom itself.''
In recent years watershed Supreme Court precedents, have
been joined by important cases like Hamdi, Rasul and Roper--
all cases that affect fundamental individual rights. In Hamdi
v. Rumsfeld, 2004, the Court concluded that although Congress
authorized the detention of combatants, due process demands
that a citizen held in the United States as an enemy
combatant be given a meaningful opportunity to contest the
factual basis for that detention before a neutral
decisionmaker. The Court reaffirmed the Nation's commitment
to constitutional principles even during times of war and
uncertainty.
Similarly, in Rasul v. Bush, 2004, the Court held that the
Federal habeas statute gave district courts jurisdiction to
hear challenges of aliens held at Guantanamo Bay, Cuba in the
U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the
Court held that executions of individuals who were under 18
years of age at the time of their capital crimes is
prohibited by Eighth and Fourteenth Amendments.
Then on June 27, 2005, the high Court issued two rulings
regarding the public display of the Ten Commandments. Each
opinion was backed by a different coalition of four, with
Justice Breyer as the swing vote. The only discernible rule
seems to be that the Ten Commandments may be displayed
outside a public courthouse (Van Orden v. Perry), but not
inside (McCreary County v. American Civil Liberties Union)
and may be displayed with other documents, but not alone. In
Van Orden v. Perry, the Supreme Court permitted a display of
the Ten Commandments to remain on the grounds outside the
Texas State Capitol. However, in McCreary County v. ACLU, a
bare majority of Supreme Court Justices ruled that two
Kentucky counties violated the Establishment Clause by
erecting displays of the Ten Commandments indoors for the
purpose of advancing religion. While the multiple concurring
and dissenting opinions in these cases serve to explain some
of the confounding differences in outcomes, it would have
been extraordinarily fruitful for the American public to
watch the Justices as they grappled with these issues during
oral arguments that, presumably, reveal much more of their
deliberative processes than mere text.
These are important cases, but does the public understand
how the Court grappled with the issues? When so many
Americans get their news and information from television, how
can we keep them in the dark about how the Court works?
When deciding issues of such great national import, the
Supreme Court is rarely unanimous. In fact, a large number of
seminal Supreme Court decisions have been reached through a
vote of 5-4. Such a close margin reveals that these decisions
are far from foregone conclusions distilled from the meaning
of the Constitution, reason and the application of legal
precedents. On the contrary, these major Supreme Court
opinions embody critical decisions reached on the basis of
the preferences and views of each individual justice. In a
case that is decided by a vote of 5-4, an individual justice
has the power by his or her vote to change the law of the
land.
5-4 Split Decisions Since the Beginning of the October 2005 Term
Since the beginning of its October 2005 Term when Chief
Justice Roberts first began hearing cases, the Supreme Court
has issued twelve (12) decisions with a 5-4 split out of a
total of 96 decisions--the most recent of which, Osborn v.
Haley, was issued few days ago (January 22, 2007). The Court
has also issued four (4) decisions with votes of 5-3, with
one justice recused. Finally, it has issued a rare 5-2
decision in which Chief Justice Roberts and Justice Alito
took no part. In sum, since the beginning of its October 2005
Term, the Supreme Court has issued seventeen (17) decisions
establishing the law of the land in which only five (5)
justices explicitly concurred. Many these narrow majorities
occur in decisions involving the Court's interpretation of
our Constitution--a sometimes divisive endeavor on the Court.
I will not discuss all 17 of these narrow majority cases, but
will describe a few to illustrate my point about the
importance of the Court and its decisions in the lives of
Americans.
Eighth Amendment, Death Penalty & Aggravating Factors or Mitigating
Evidence
The first 5-4 split decision, decided on January 11, 2006,
was Brown v. Sanders, which involves the death penalty. In
that case the Court held that in death penalty cases, an
invalidated sentencing factor will render the sentence
unconstitutional by reason of its adding an improper element
to the aggravation scale unless one of the other sentencing
factors enables the sentencer to give aggravating weight to
the same facts and circumstances. The majority opinion was
authored by Justice Scalia and joined by Chief Justice
Roberts and Justices O'Connor, Kennedy and Thomas. Justice
Stevens filed a dissenting opinion in which Justice Souter
joined. Similarly, Justice Breyer filed a dissenting opinion
in which Justice Ginsburg joined.
Last November the Supreme Court decided Ayers v. Belmontes,
a capital murder case in which the Belmontes contended that
California law and the trial court's instructions precluded
the jury from considering his forward looking mitigation
evidence suggesting he could lead a constructive life while
incarcerated. In Ayers the Supreme Court found the Ninth
Circuit erred in holding that the jury was precluded by jury
instructions from considering mitigation evidence. Justice
Kennedy authored the majority opinion while Justice Stevens
wrote a dissent joined by three other justices.
Other 5-4 split decisions since October 2005 include United
States v. Gonzalez-Lopez, concerning whether a defendant's
Sixth Amendment right to counsel was violated when a district
court refused to grant his paid lawyer permission to
represent him based upon some past ethical violation by the
lawyer (June 26, 2006); LULAC v. Perry, deciding whether the
2004 Texas redistricting violated provisions of the Voting
Rights Act (June 28, 2006); Kansas v. Marsh, concerning the
Eighth and Fourteenth Amendments in a capital murder case in
which the defense argued that a Kansas statute established an
unconstitutional presumption in favor of the death sentence
when aggravating and mitigating factors were in equipoise
(April 25, 2006); Clark v. Arizona, a capital murder case
involving the constitutionality of an Arizona Supreme
Court precedent governing the admissibility of evidence to
support an insanity defense (June 29, 2006); and Garcetti
v. Ceballos, a case holding that when public employees
make statements pursuant to their official duties they are
not speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications
from employer discipline (May 30, 2006).
[[Page S1262]]
The Justices Have Split 5-3 Four (4) Times Since October 2005
Fourth Amendment Warrant Requirement
In Georgia v. Randolph, (March 22, 2006), a 5-3 majority of
the Supreme Court held that a physically present co-
occupant's stated refusal to permit a warrantless entry and
search rendered the search unreasonable and invalid as to
that occupant. Justice Souter authored the majority opinion.
Justice Stevens filed a concurring opinion as did Justice
Breyer. The Chief Justice authored a dissent joined by
Justice Scalia. Moreover, Justice Scalia issued his own
dissent as did Justice Thomas. In Randolph, there were six
opinions in all from a Court that only has nine justices. One
can only imagine the spirited debate and interplay of ideas,
facial expressions and gestures that occurred in oral
arguments. Audio recordings are simply inadequate to capture
all the nuance that only cameras could capture and convey.
Actual Innocence and Habeas Corpus
In House v. Bell, a 5-3 opinion authored by Justice Kennedy
(June 12, 2006), the Supreme Court held that because House
had made the stringent showing required by the actual
innocence exception to judicially-established procedural
default rules, he could challenge his conviction even after
exhausting his regular appeals. Justice Alito took no part in
considering or deciding the House case. It bears noting,
however, that if one Justice had been on the other side of
this decision it would have resulted in a 4-4 tie and,
ultimately, led to affirming the lower court's denial of
House's post-conviction habeas petitions due to a procedural
default.
Military Commissions, Geneva Conventions and Habeas Corpus
In Hamdan v. Rumsfeld, a 5-3 decision in which Chief
Justice Roberts did not participate, the Supreme Court held
that Hamdan could challenge his detention and the
jurisdiction of the President's military commissions to try
him despite the 2005 enactment of the Detainee Treatment Act.
A thin majority of the justices held that, although the DTA
states that ``no court . . . shall have jurisdiction to hear
or consider . . . an application for . . . habeas corpus
filed by . . . an alien detained . . . at Guantanamo Bay,''
the President could not establish a military commission to
try Hamdan unless Congress granted him the authority through
legislation. This case was of great interest and great
importance, and was one of a handful of recent cases in which
the Supreme Court released audiotapes or oral arguments
almost immediately after they occurred. The prompt release of
the audiotapes was good, but it would have been far better to
allow the public to watch the parties' advocates and the
Justices grapple with the jurisdictional, constitutional and
merits-related questions that were addressed in that case.
With due respect to Justices Scalia and Ginsberg, watching
the advocates respond as the Justices pepper them with
questions is something that should be seen and heard.
14th Amendment Due Process and Notice Concerning Tax Liens on Homes
In another 5-3 case, Jones v. Flowers, (April 26, 2006),
the Supreme Court considered whether the government must take
additional reasonable steps to provide notice before taking
the owner's property when notice of a tax sale is mailed to
the owner and returned undelivered. The public can readily
understand this issue. In an opinion by Chief Justice
Roberts, the Court held that where the Arkansas Commissioner
of State Lands had mailed Jones a certified letter and it had
been returned unclaimed, the Commissioner had to take
additional reasonable steps to provide Jones notice. Justices
Thomas, Scalia and Kennedy dissented and Justice Alito took
no part in the decision.
Not only lawyers who might listen to the audio tapes and
read the full opinions, but all citizens could benefit from
knowing how the Court grapples with legal issues related to
their rights--in one case something as straightforward as the
right to own one's home as it may be affected by unclaimed
mail--and in another the right of someone who is in prison to
be heard by a court. My legislation creates the opportunity
for all interested Americans to watch the Court in action in
cases like these.
Regardless of one's views concerning the merits of these
decisions, the interplay between the government, on the one
hand, and the individual on the other is something many
Americans want to understand more fully. So, it is with these
watershed decisions in mind that I introduce legislation
designed to make the Supreme Court less remote. Millions of
Americans recently watched the televised confirmation
hearings for our two newest Justices. Americans want
information, knowledge, and understanding; in short, they
want access.
In a democracy, the workings of the government at all
levels should be open to public view. With respect to oral
arguments, the more openness and the broader opportunity for
public observation--the greater will be the public's
understanding and trust. As the Supreme Court observed in
Press-Enterprise Co. v. Superior Court (1986), ``People in an
open society do not demand infallibility from their
institutions, but it is difficult for them to accept what
they are prohibited from observing.'' It was in this spirit
that the House of Representatives opened its deliberations to
meaningful public observation by allowing C-SPAN to begin
televising debates in the House chamber in 1979. The Senate
followed the House's lead in 1986 by voting to allow
television coverage of the Senate floor.
Judiciary Committee Hearings and Action on Cameras in the Federal
Courts
On November 9, 2005, the Judiciary Committee held a hearing
to address whether Federal court proceedings should be
televised generally and to consider S. 1768, my earlier
version of this bill, and S. 829, Senator Grassley's
``Sunshine in the Courtroom Act of 2005.'' During the
November 9 hearing, most witnesses spoke favorably of
cameras in the courts, particularly at the appellate
level. Among the witnesses favorably disposed toward the
cameras were Peter Irons, author of May It Please the
Court, Seth Berlin, a First Amendment expert at a local
firm, Brian Lamb, founder of C-SPAN, Henry Schleif of
Court TV Networks, and Barbara Cochran of the Radio-
Television News Directors Association and Foundation.
A different view was expressed by Judge Jan DuBois of the
Eastern District of Pennsylvania, who testified on behalf of
the Judicial Conference. Judge DuBois warned of concerns,
particularly at the trial level, where witnesses may appear
uncomfortable because of cameras, and thus might seem less
credible to jurors. I note, however, that these would not be
issues in appellate courts, where there are no witnesses or
jurors.
The Judiciary Committee considered and passed both bills on
March 30, 2006. The Committee vote to report S. 1768 was 12-
6, and the bill was placed on the Senate Legislative
Calendar. Unfortunately, due to the press of other business
neither bill was allotted time on the Senate Floor.
Congressional Authority to Legislate Cameras in the Court
In my judgment, Congress, with the concurrence of the
President, or overriding his veto, has the authority to
require the Supreme Court to televise its proceedings. Such a
conclusion is not free from doubt and may be tested in the
Supreme Court, which will have the final word. As I see it,
there is no constitutional prohibition against this
legislation.
Article 3 of the Constitution states that the judicial
power of the United States shall be vested ``in one Supreme
Court and such inferior Courts as the Congress may from time
to time ordain and establish.'' While the Constitution
specifically creates the Supreme Court, it left it to
Congress to determine how the Court would operate. For
example, it was Congress that fixed the number of justices on
the Supreme Court at nine. Likewise, it was Congress that
decided that any six of these justices are sufficient to
constitute a quorum of the Court. It was Congress that
decided that the term of the Court shall commence on the
first Monday in October of each year, and it was Congress
that determined the procedures to be followed whenever the
Chief Justice is unable to perform the duties of his office.
Congress also controls more substantive aspects of the
Supreme Court. Most importantly, it is Congress that in
effect determines the appellate jurisdiction of the Supreme
Court. Although the Constitution itself sets out the
appellate jurisdiction of the Court, it provides that such
jurisdiction exists ``with such exceptions and under such
regulations as the Congress shall make.''
The Supreme Court could permit television through its own
rule but has decided not to do so. Congress should be
circumspect and even hesitant to impose a rule mandating
television coverage of oral arguments and should do so only
in the face of compelling public policy reasons. The Supreme
Court has such a dominant role in key decision-making
functions that its proceedings ought to be better known to
the public; and, in the absence of a Court rule, public
policy would be best served by enacting legislation requiring
the televising of Supreme Court proceedings.
My legislation embodies sound policy and will prove
valuable to the public. I urge my colleagues to support this
bill. Finally, I ask unanimous consent that the text of the
bill be printed in the Record and I yield the Floor.
Mr. SPECTER. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, by previous order, I am to be recognized;
is that correct?
The PRESIDING OFFICER. That is correct, for 45 minutes.
____________________