[Congressional Record Volume 155, Number 30 (Friday, February 13, 2009)]
[Senate]
[Pages S2332-S2336]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Grassley, Mr. Durbin, Mr. 
        Schumer, Mr. Feingold, and Mr. Cornyn):
  S. 446. A bill to permit the televising of Supreme Court proceedings; 
to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, once more 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 of law that affect this country and everyday 
Americans. The Supreme Court makes pronouncements on Constitutional and 
Federal law that have a direct impact on the rights of Americans. Those 
rights would be substantially enhanced by televising the oral arguments 
of the Court so that the public can see and hear the issues presented 
to the Court. With this information, the public would have insight into 
key issues and be better equipped to understand the impact of and 
reasons for the Court's decisions.
  In a very fundamental sense, televising the Supreme Court has been 
implicitly recognized--perhaps even sanctioned--in a 1980 decision by 
the Supreme Court of the United States entitled Richmond Newspapers v. 
Virginia. In this case, the Court noted that a public trial belongs not 
only to the accused but to the public and the press as well and 
recognized that people now acquire information on court procedures 
chiefly through the print and electronic media.
  That decision, in referencing the electronic media, appears to 
anticipate televising court proceedings, although I do not mean to 
suggest that the Supreme Court is in agreement with this legislation. I 
should note that the Court could, on its own initiative, televise its 
proceedings but has chosen not to do so. This presents, in my view, the 
necessity for legislating on this subject.
  When I argued the case of the Navy Yard, Dalton v. Specter, back in 
1994, the Court proceedings were illustrated by an artist's drawings--
some of which now hang in my office. Today, the public gets a 
substantial portion, if not most, of its information from television 
and the internet. While many court proceedings are broadcast routinely 
on television, the public has little access to the most important and 
highest court in this country. Although the internet has made the 
Court's transcripts, and even more recently, audio recordings, more 
widely accessible, the public is still deprived of the real time 
transmission of audio and video feeds from the Court. I believe it is 
vital for the public to see, as well as to hear, the arguments made 
before the Court and the interplay among the justices. I think the 
American people will gain a greater respect for the way in which our 
High Court functions if they are able to see oral arguments.
  Justice Felix Frankfurter perhaps 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.''

  When I spoke in favor of this legislation in September of 2000, I 
said, ``I do not expect a rush to judgment on this very complex 
proposition, but I do believe the day will come when the Supreme Court 
of the United States will be televised. That day will come, and it will 
be decisively in the public interest so the public will know the 
magnitude of what the Court is deciding and its role in our democratic 
process.'' I have continued to reiterate those sentiments in September 
of 2005 and in January of 2007 when I re-introduced identical bills. 
Today, I continue to support this legislation because I believe that it 
is crucial to the public's awareness of Supreme Court proceedings and 
their impact on the daily lives of all Americans.
  I pause to note that it was not until 1955 that the Supreme Court, 
under the leadership of Chief Justice Warren, first began permitting 
audio recordings of oral arguments. Between 1955 and 1993, there were 
apparently over 5,000 recorded arguments before the Supreme Court. That 
roughly translates to an average of about 132 arguments annually. But 
audio recordings are simply ill suited to capture the nuance of oral 
arguments and the sustained attention of the American citizenry. Nor is 
it any response that people who wish to see open sessions of the 
Supreme Court should come to the Capital and attend oral arguments. 
For, according to one source: ``Several million people each year visit 
Washington, D.C., and many thousands tour the White House and the 
Capitol. But few have the chance to sit in the Supreme Court chamber 
and witness an entire oral argument. Most tourists are given just three 
minutes before they are shuttled out and a new group shuttled in. In 
cases that attract headlines, seats for the public are scarce and 
waiting lines are long. And the Court sits in open session less than 
two hundred hours each year. Television cameras and radio microphones 
are still banned from the chamber, and only a few hundred people at 
most can actually witness oral arguments. Protected by a marble wall 
from public access, the Supreme Court has long been the least 
understood of the three branches of our Federal Government.''
  In light of the increasing public desire for information, it seems 
untenable to continue excluding 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.''
  Televised court proceedings better enable the public to understand 
the role of the Supreme Court and its impact on the key decisions of 
the day. Not only has the Supreme Court invalidated Congressional 
decisions where there was, in the views of many, simply a difference of 
opinion as to what is preferable public policy, but the Court 
determines novel issues such as whether AIDS is a disability under the 
Americans with Disabilities Act, whether Congress can ban obscenity 
from the Internet, and whether states can impose term limits upon 
members of Congress. The current Court, like its predecessors, hands 
down decisions which vitally affect the lives and liberties of all 
Americans. Since the Court's historic 1803 decision, Marbury v. 
Madison, the Supreme Court has the final authority on issues of 
enormous importance from birth to death. In Roe v. Wade, 1973, the 
Court affirmed a Constitutional right to abortion in this country and 
struck down state statutes banning or severely restricting abortion 
during the first two trimesters on the grounds that they violated a 
right to privacy inherent in the Due Process Clause of the Fourteenth 
Amendment.

[[Page S2333]]

In the case of Washington v. Glucksberg, 1997, the court refused to 
create a similar right to assisted suicide. Here the Court held that 
the Due Process Clause does not recognize a liberty interest that 
includes a right to commit suicide with another's assistance.

  In the Seventies, the Court first struck down then upheld state 
statutes imposing the death penalty for certain crimes. In Furman v. 
Georgia, 1972, the Court struck down Georgia's death penalty statute 
under the cruel and unusual punishment clause of the Eighth Amendment 
and stated that no death penalty law could pass constitutional muster 
unless it took aggravating and mitigating circumstances into account. 
This decision led Georgia and many States to amend their death penalty 
statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme 
Court upheld Georgia's amended death penalty statute.
  Over the years, the Court has also played a major role in issues of 
war and peace. In its opinion in Scott v. Sandford, 1857--better known 
as the Dred Scott decision--the Supreme Court held that Dred Scott, a 
slave who had been taken into ``free'' territory by his owner, was 
nevertheless still a slave.
  The Court further held that Congress lacked the power to abolish 
slavery in certain territories, thereby invalidating the careful 
balance that had been worked out between the North and the South on the 
issue. Historians have noted that this opinion fanned the flames that 
led to the Civil War.
  The Supreme Court has also ensured adherence to the Constitution 
during more recent conflicts. Prominent opponents of the Vietnam War 
repeatedly petitioned the Court to declare the Presidential action 
unconstitutional on the grounds that Congress had never given the 
President a declaration of war. The Court decided to leave this 
conflict in the political arena and repeatedly refused to grant writs 
of certiorari to hear these cases. This prompted Justice Douglas, 
sometimes accompanied by Justices Stewart and Harlan, to take the 
unusual step of writing lengthy dissents to the denials of cert.
  In New York Times Co. v. United States, 1971--the so called 
``Pentagon Papers'' case--the Court refused to grant the government 
prior restraint to prevent the New York Times from publishing leaked 
Defense Department documents which revealed damaging information about 
the Johnson Administration and the war effort. The publication of these 
documents by the New York Times is believed to have helped move public 
opinion against the war.
  In its landmark civil rights opinions, the Supreme Court took the 
lead in effecting needed social change, helping us to address 
fundamental questions about our society in the courts rather than in 
the streets. In Brown v. Board of Education, the Court struck down the 
principle of ``separate but equal'' education for blacks and whites and 
integrated public education in this country. This case was then 
followed by a series of civil rights cases which enforced the concept 
of integration and full equality for all citizens of this country, 
including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking 
Authority, 1961, and Peterson v. City of Greenville, 1963.

  In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, 
familiar names in the lexicon of lawyerly discussions concerning 
watershed Supreme Court precedents, have been joined with similarly 
important cases like Hamdi, Rasul, Roper, and Boumediene--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. In Boumediene 
v. Bush, 2008, the Court held that, subsequent to Hamdan v. Rumsfeld 
and regardless of Congress' attempts to strip federal courts of 
jurisdiction to consider pending habeas corpus petitions from 
Guantanamo detainees, the detainees nonetheless were not barred from 
seeking the writ and procedures under the Detainee Treatment Act were 
not an adequate substitute for it.
  When deciding issues of such great national import, the Supreme Court 
is rarely unanimous. In fact, a large number of seminal Supreme Court 
decisions, such as Boumediene, 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.
  Since the beginning of its October 2005 term when Chief Justice 
Roberts first began hearing cases, the Supreme Court has issued 45 
decisions with a 5-4 split, not including the current October 2008 
term, in which I understand there are additional 5-4 decisions within 
the few cases that have already been decided. It has also issued six 5-
3 decisions in which one justice recused. Finally, it has issued a rare 
5-2 decision in which Chief Justice Roberts and Justice Alito took no 
part, and in the October 2007 term, two 4-4 ties. In sum, since the 
beginning of its October 2005 term and not counting the current term, 
the Supreme Court has issued 52 decisions establishing the law of the 
land in which only 5 justices explicitly concurred. Many of 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 52 thinly decided cases but will 
describe a few to illustrate my point about the importance of the Court 
and its decisions in the lives of Americans.
  The first 5-4 split decision, decided on January 11, 2006, was Brown 
v. Sanders. In this case the Court considered ``the circumstances in 
which an invalidated sentencing factor will render a death sentence 
unconstitutional by reason of its adding an improper element to the 
aggravation scale in the jury's weighing process.'' A majority of the 
Court held that henceforth 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.

  In November 2006, 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

[[Page S2334]]

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; 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; and District of 
Columbia v. Heller, June 26, 2008, which found that Washington, D.C.'s 
gun laws were unconstitutionally restrictive of rights afforded under 
the Second Amendment.
  The justices have split 5-3 six times since October 2005.
  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 of the 
nuance that only cameras could capture and convey.
  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.
  In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts 
took no part, the Supreme Court held that Hamdan could challenge his 
detention and the jurisdiction of the President's military commissions 
to try him despite recent enactment of the Detainee Treatment Act. A 
thin majority of the justices supported the decision despite knowledge 
that the DTA explicitly provides ``no court . . . shall have 
jurisdiction to hear or consider . . . an application for . . . habeas 
corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In 
deciding the merits, the Court went on to hold that the President 
lacked authority to establish a military commission to try Hamdan or 
others without enabling legislation passed by both houses of Congress 
and enacted into law. This case was one of a handful of recent cases in 
which the Supreme Court released audiotapes of oral arguments almost 
immediately after they occurred. Yet it would have been vastly 
preferable to watch the parties' advocates grapple with the legal 
issues as the justices peppered them with jurisdictional, 
constitutional and merits-related questions from the High Court's 
bench.
  In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, 
the Supreme Court considered whether, when notice of a tax sale is 
mailed to the owner and returned undelivered, the government must take 
additional reasonable steps to provide notice before taking the owner's 
property. 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.
  Though Jones v. Flowers involved the Due Process Clause of the 
Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one 
could draw interesting analogies to the Court's controversial 2005 
decision in Kelo v. City of New London. In Kelo, a majority of the 
justices held that a city's exercise of eminent domain power in 
furtherance of a privately initiated economic development plan 
satisfied the Constitution's Fifth Amendment ``public use'' requirement 
despite the absence of any blight. Four justices dissented in Kelo and 
public opinion turned sharply against the decision immediately after it 
was issued.
  It's possible, though merely speculative, that the public ire aimed 
at Kelo informed what became a majority of justices in Jones v. 
Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when 
a letter is returned by the post office, the sender will ordinarily 
attempt to resend it, if it is practicable to do so. This is especially 
true when, as here, the subject matter of the letter concerns such an 
important and irreversible prospect as the loss of a house.''
  Not only lawyers but all homeowners could benefit from knowing how 
the Court grapples with legal issues governing the rights to their 
houses. My legislation creates the opportunity for all interested 
Americans to watch the Court in action in cases like these. From his 
perch on the High Court one justice has been heard to contend that most 
Americans could care less about the arcane legal issues argued before 
the Court. But as elected representatives of the people we must 
endeavor to view America from a bottoms-up, rather than a top-down 
perspective.
  Regardless of one's view concerning the merits of these decisions, it 
is clear that they frequently have a profound effect on the interplay 
between the government, on the one hand, and the individual on the 
other. So, it is with these watershed decisions in mind that I 
introduce legislation designed to make the Supreme Court less esoteric 
and more accessible to common men and women who are so clearly affected 
by its decisions.
  Given the enormous significance of each vote cast by each justice on 
the Supreme Court, televising the proceedings of the Supreme Court will 
allow sunlight to shine brightly on these proceedings and ensure 
greater public awareness and scrutiny.
  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 more real the opportunity for public observation the 
greater the understanding and trust. As the Supreme Court observed in 
the 1986 case of Press-Enterprise Co. v. Superior Court, ``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.
  Beyond this general policy preference for openness, however, there is 
a strong argument that the Constitution requires that television 
cameras be permitted in the Supreme Court.
  It is well established that the Constitution guarantees access to 
judicial proceedings to the press and the public. In 1980, the Supreme 
Court relied on this tradition when it held in Richmond Newspapers v. 
Virginia that the right of a public trial belongs not just to the 
accused, but to the public and the press as well. The Court noted that 
such openness has ``long been recognized as an indisputable attribute 
of an Anglo-American trial.''
  Recognizing that in modern society most people cannot physically 
attend trials, the Court specifically addressed the need for access by 
members of the media: ``Instead of acquiring information about trials 
by first hand observation or by word of mouth from those who attended, 
people now acquire it chiefly through the print and electronic media. 
In a sense, this validates the media claim of acting as surrogates for 
the public. [Media presence} contributes to public understanding of the 
rule of law and to comprehension of the functioning of the entire 
criminal justice system.''

[[Page S2335]]

  To be sure, a strong argument can be made that forbidding television 
cameras in the court, while permitting access to print and other media, 
constitutes an impermissible discrimination against one type of media 
over another. In recent years, the Supreme Court and lower courts have 
repeatedly held that differential treatment of different media is 
impermissible under the First Amendment absent an overriding 
governmental interest. For example, in 1983 the Court invalidated 
discriminatory tax schemes imposed only upon certain types of media in 
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In 
the 1977 case of ABC v. Cuomo, the Second Circuit rejected the 
contention by the two candidates for mayor of New York that they could 
exclude some members of the media from their campaign headquarters by 
providing access through invitation only. The Court wrote that: ``Once 
there is a public function, public comment, and participation by some 
of the media, the First Amendment requires equal access to all of the 
media or the rights of the First Amendment would no longer be 
tenable.''
  However, in the 1965 case of Estes v. Texas, the Supreme Court 
rejected the argument that the denial of television coverage of trials 
violates the equal protection clause. In the same opinion, the Court 
held that the presence of television cameras in the Court had violated 
a Texas defendant's right to due process. Subsequent opinions have cast 
serious doubt upon the continuing relevance of both prongs of the Estes 
opinion.
  In its 1981 opinion in Chandler v. Florida, the court recognized that 
Estes must be read narrowly in light of the state of television 
technology at that time. The television coverage of Estes' 1962 trial 
required cumbersome equipment, numerous additional microphones, yards 
of new cables, distracting lighting, and numerous technicians present 
in the courtroom. In contrast, the court noted, television coverage in 
1980 can be achieved through the presence of one or two discreetly 
placed cameras without making any perceptible change in the atmosphere 
of the courtroom. Accordingly, the Court held that, despite Estes, the 
presence of television cameras in a Florida trial was not a violation 
of the rights of the defendants in that case. By the same logic, the 
holding in Estes that exclusion of television cameras from the courts 
did not violate the equal protection clause must be revisited in light 
of the dramatically different nature of television coverage today.
  Given the strength of these arguments, it is not surprising that over 
the last two decades there has been a rapidly growing acceptance of 
cameras in American courtrooms which has reached almost every court 
except for the Supreme Court itself.
  On September 6, 2000, the Senate Judiciary Committee's Subcommittee 
on Administrative Oversight and the Courts held a hearing titled 
``Allowing Cameras and Electronic Media in the Courtroom.'' The primary 
focus of the hearing was Senate bill S. 721, legislation introduced by 
Senators Grassley and Schumer that would give Federal judges the 
discretion to allow television coverage of court proceedings. One of 
the witnesses at the hearing, the late Judge Edward R. Becker, then-
Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in 
opposition to the legislation and the presence of television cameras in 
the courtroom. The remaining five witnesses, however, including a 
Federal judge, a State judge, a law professor and other legal experts, 
all testified in favor of the legislation. They argued that cameras in 
the courts would not disrupt proceedings but would provide the kind of 
accountability and access that is fundamental to our system of 
government.

  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.
  The notable exception was the Honorable Judge Jan DuBois of the 
Eastern District of Pennsylvania, who testified on behalf of the 
Judicial Conference. Judge DuBois warned of problems particularly at 
the trial level, where witnesses who appear uncomfortable because of 
cameras might seem less credible to jurors. I note, however, that 
appellate courts do not appear susceptible to this criticism because 
there are no witnesses or jurors present for appellate arguments.
  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. Again, in the 110th Congress, I introduced this legislation, and 
it was reported out of the Judiciary Committee by a vote of 11-7.
  During their confirmation hearings over the past two years, Chief 
Justice John Roberts stated he would keep an open mind on the issue and 
Justice Alito stated that as a circuit judge he unsuccessfully voted, 
in the minority, to permit televised open proceedings in the Third 
Circuit. I applaud the fact the new Chief Justice has taken steps to 
make the Court more open and to ensure the timely publication of audio 
recordings of the arguments as well as the written transcripts.
  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 
is highly likely to be tested with the Supreme Court, as usual, having 
the final word. As I see it, there is clearly no constitutional 
prohibition against such 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.
  Beyond such basic structural and operational matters, 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 original jurisdiction of the Court, it provides that 
appellate jurisdiction exists ``with such exceptions and under such 
regulations as the Congress shall make.''
  Some objections have been raised to televised proceedings of the 
Supreme Court on the ground that it would subject justices to undue 
security risks. My own view is such concerns are vastly overstated. 
Well-known members of Congress walk on a regular basis in public view 
in the Capitol complex. Other very well-known personalities, 
presidents, vice presidents, cabinet officers, all are on public view 
with even incumbent presidents exposed to risks as they mingle with the 
public. Such risks are minimal in my view given the relatively minor 
ensure that Supreme Court justices would undertake through television 
appearances. Also, any concerns could be mitigated by focusing only on 
the attorneys presenting arguments. There is no requirement that the 
justices permit the cameras to focus on the bench.
  As I explained earlier, the Supreme Court could, of course, 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 the 
televising of Supreme Court proceedings and should do so only in the 
face of compelling public policy reasons. The Supreme Court has such a 
dominant role in key

[[Page S2336]]

decision-making functions that their proceedings ought to be better 
known to the public; and, in the absence of Court rule, public policy 
would be best served by enactment of legislation requiring the 
televising of Supreme Court proceedings.
  This legislation embodies sound policy and will prove valuable to the 
all Americans. I urge my colleagues to support this bill.
                                 ______