[Congressional Record Volume 155, Number 164 (Thursday, November 5, 2009)]
[Senate]
[Pages S11218-S11221]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE RESOLUTION 339--TO EXPRESS THE SENSE OF THE SENATE IN SUPPORT OF 
         PERMITTING THE TELEVISING OF SUPREME COURT PROCEEDINGS

  Mr. SPECTER (for himself, Mr. Kaufman, Mr. Cornyn, Mr. Feingold, Mr. 
Durbin, Ms. Klobuchar, Mr. Whitehouse, and Mr. Schumer) submitted the 
following resolution; which was referred to the Committee on the 
Judiciary:

                              S. Res. 339

       Resolved,

     SECTION 1. SENSE OF THE SENATE.

       It is the sense of the Senate that the Supreme Court should 
     permit live television coverage of all open sessions of the 
     Court unless the Court decides, by a vote of the majority of 
     justices, that allowing such coverage in a particular case 
     would constitute a violation of the due process rights of 1 
     or more of the parties before the Court.

  Mr. SPECTER. Mr. President, I have sought recognition to introduce a 
sense-of-the-Senate resolution urging the Supreme Court to permit live 
television coverage of its open proceedings. This is different from 
previous legislation which I have introduced which would require the 
Court to permit live television coverage.
  I offer this resolution on behalf of Senator Cornyn, Senator Kaufman, 
Senator Feingold, Senator Durbin, Senator Klobuchar, Senator 
Whitehouse, and Senator Schumer.
  The previous bills, which would have required the Supreme Court to 
open its proceedings to live television coverage, were voted out of the 
Judiciary Committee in the 109th Congress by a vote of 12 to 6 and the 
110th Congress by a vote of 11 to 8.
  The basis for the legislative action is on the recognized authority 
of Congress to establish administrative matters for the Court. For 
example, the Congress determines how many Justices there will be--nine; 
the Congress determines how many Justices are required for a quorum--
six; the Congress determines that the Court will begin its operation on 
the first day of October; the Congress has set time limits.
  The shift in the resolution for urging the Court is to take a milder 
approach to avoid a confrontation and to avoid a possible 
constitutional clash on the separation of powers.
  There is no doubt that the Court would have the last word if the 
Congress required live television coverage. And, as I say, there are 
analogous administrative matters which the Congress does control. But 
as a first step, today the resolution urges the Court to open its 
proceedings for live television coverage.
  The thrust of this resolution is that the Court should be televised, 
just as the Senate is televised, just as the House is televised, to 
familiarize the American people with what the Court does. The average 
person knows very little about what the Court does.
  The Supreme Court itself has held that newspapers have a right to be 
in a courtroom. In an electronic age, television and radio ought to 
have the same standing.
  The importance of the Court is seen in the scope of the cases which 
they decide and the kinds of cases which they do not decide. For 
example, the Court makes a determination on life, a woman's right to 
choose, makes a determination on the application of the death penalty, 
a determination on civil rights, on Guantanamo, on wireless 
wiretapping, on congressional authority, on Executive authority.
  The Court is the final word since 1803, in the case of Marbury v. 
Madison, when the Court decided the Court would be the final word. That 
was the statement of Chief Justice Marshall, and it has stood for the 
life of our country. I believe it is a sound judgment for the Supreme 
Court to have the final word. But if the Framers were to rewrite the 
Constitution, I think the Court would now be article I instead of the 
Congress being article I, and the executive branch--the President--
being article II.
  It is also important to note what the Court does not decide. The 
Court declined to hear the terrorist surveillance program. That 
warrantless wiretap program was found unconstitutional by the Federal 
court in Detroit. It was reversed by the Sixth Circuit Court of Appeals 
on standing ground, with a very vigorous and better reasoned dissent. 
Standing is a very flexible doctrine and usually made when the Court 
simply doesn't want to take up the issue. But the terrorist 
surveillance program presented the sharpest conflict--perhaps the 
sharpest conflict between congressional authority, under article I, 
with the Foreign Intelligence Surveillance Act establishing the 
exclusive way to conduct wiretaps and the President's article II powers 
as Commander in Chief to conduct warrantless wiretaps.
  The Supreme Court denied hearing the case of the survivors of victims 
of 9/11 against Saudi Arabia, even though congressional mandate is 
clear that sovereign immunity does not apply to foreign government 
officials.
  Just in the past few years, the Supreme Court has decided cases of 
enormous importance. A few illustrate the proposition: The Court did 
decide cutting-edge issues on whether local school districts may 
fulfill the promise of Brown v. Board of Education by taking voluntary 
remedial steps to maintain integrated schools; whether public 
universities may consider race when evaluating applicants for admission 
in order to ensure diversity within their student bodies; whether 
citizens have a constitutional right to own guns; whether States may 
exercise the power of eminent domain to take a personal residence in 
order to make room for commercial development.
  The Court has also declined to hear cases involving splits--that is, 
differences of judgment--between different courts of appeals. It is not 
an effective administration of the judicial system if the case may be 
decided differently depending on whether a person litigates in the 
First Circuit or in the Eleventh Circuit and then the district courts, 
where the circuit has not ruled, speculate as to what the court of 
appeals would have decided.
  We had a confirmation hearing yesterday with Judge Vanaskie of the 
Middle District of Pennsylvania. I asked him if he had seen situations 
where there were circuit splits, but your circuit hasn't decided, and 
how do you handle that case. Judge Vanaskie pointed out that was very 
problematic. There are major matters where the Supreme Court has left 
these circuit splits standing. For example, whether jurors may consult 
the Bible during their deliberations in a criminal case, whether a 
civil lawsuit must be dismissed predicated on state secret, whether the 
spouse of a U.S. citizen remains eligible for an immigration visa after 
the citizen dies, whether an employee who alleges that he or she was 
unlawfully discriminated against for claiming benefits or exercising 
other rights under an employer-sponsored health care or pension plan, 
or when does a collective bargaining agreement confer on retirees the 
right to lifetime health care benefits? may a Federal court toll the 
statute of limitations in a suit brought under the Federal Tort Claims 
Act?
  These are illustrative of very important decisions which the Supreme 
Court does not decide. Congress can't

[[Page S11219]]

tell the Supreme Court what to decide, but Congress may mandate the 
Court's jurisdiction. If this were in the public view, if the Court 
were accountable for not handling such cases, I think the Court might 
well take a different view.
  It is not as if the Court is too busy to hear these cases. Take a 
brief survey of the Court's docket. In 1886, there were 1,396 cases on 
the Supreme Court docket. It decided 451. In 1926, there were 223 
signed opinions. So it was down from 451 in 1886 to 223 in 1926. Then 
by 1987, it was down to 146. In 2007, the Court heard argument in only 
75 cases and issued only 67 signed opinions. So it is perfectly clear 
that the Court's docket, with the four clerks--which each one of the 
Supreme Court Justices has--could well accommodate a more vigorous 
workload.
  In the written statement that I will include when I finish these 
extemporaneous remarks, I have cited several recent cases where the 
Court has not followed well-established precedent. Well, they have the 
authority to overrule their own precedents, but it is something the 
public ought to have an idea on and an understanding of.
  I think this is a particularly good time for the Court to consider 
televising itself under the resolution urging them to be televised 
since Justice Souter recently left the Court. Justice Souter made the 
famous statement that if the Supreme Court were to be televised, the 
cameras would roll in over his dead body. The members of the Supreme 
Court are very concerned about what their fellows think, and it may 
well have been that in light of a strenuous objection by Justice 
Souter, when he was on the Court, that would have tipped the scales. 
But listen to what the Justices have had to say on the issue of 
televising the Supreme Court.
  I have made it a practice to question the nominees for the Supreme 
Court to get their views on television. Justice Paul Stevens said: 
Literally hundreds of people have stood in line for hours in order to 
hear oral argument only to be denied admission because the courtroom 
was filled.
  The practice is, if you can get in at all, you stay for 3 minutes and 
then you are ushered out to let other people in because it is a small 
chamber.
  Justice John Paul Stevens said: Television in the Court is worth a 
try.
  Justice Ruth Bader Ginsburg said: I don't see any problem with having 
proceedings televised. I think it would be good for the public.
  Justice Breyer said--at a time when he was chief judge of the First 
Circuit--I voted in the judicial conference in favor of experimenting 
with television in the courtroom. The judicial conference made an 
analysis of television--made a favorable recommendation--and some 
circuit courts and some lower courts have been televised.
  Justice Sotomayor, in her recent confirmation hearing, said, 
referring to her experience with cameras in the courtroom, that the 
experience has ``generally been positive, and I would certainly recount 
that,'' referring to her colleagues on the Supreme Court.
  Justice Alito said, in the Third Circuit, there was a debate and he 
argued we should do it; that is, televise it. He said: I would keep an 
open mind on the subject with respect to the Supreme Court.
  The fact is the Justices frequently appear on television on their 
own. For example, Chief Justice Roberts and Justice Stevens appeared on 
interviews on ABC's ``Prime Time.'' Justice Ginsburg has appeared on 
CBS News. Justice Breyer has been on ``FOX News Sunday.'' Justices 
Scalia and Thomas have appeared on CBS's ``60 Minutes.'' All the 
Justices appeared for interviews that C-SPAN recently aired during its 
``Supreme Court Week.''
  Public opinion polls are strongly in favor of having the Supreme 
Court televised. There have been numerous editorials in support, and 
recently the Supreme Court of the United Kingdom opened its proceedings 
for television.
  That is a very brief statement of a more expansive statement, which I 
have prepared, and I think the reasons for opening the Court are 
overwhelming. In a Democratic society, there should be transparency at 
all levels of government. The judicial independence of the Supreme 
Court is of vital importance to be maintained, and they have life 
tenure, but there is no reason why the American people should not 
understand what they are doing.
  The American people should understand that when they take a case such 
as Bush v. Gore, where there is a challenge on the counting of the 
votes in Florida and where Justice Scalia says there would be 
irreparable harm in allowing the votes in Florida to be counted because 
it might undermine the legitimacy of the new administration, the 
American people ought to have maximum access to understand what the 
Court is doing. The American people ought to have maximum access to 
know that the Supreme Court of the United States declined to hear a 
decision on whether the President had authority to conduct warrantless 
wiretaps. The American people ought to know that all these circuit 
splits remain unresolved at a time when the workload and the agenda and 
the docket of the Supreme Court has declined enormously.
  Mr. President, I ask unanimous consent to have printed in the Record 
at this point a ``Dear Colleague'' letter signed by Senator Cornyn and 
myself.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             United States Senate,


                                               Washington, DC,

                                                 November 5, 2009.
       Dear Colleague: We write to ask for your co-sponsorship on 
     a Sense of the Senate Resolution which urges the Supreme 
     Court to permit live television coverage of its open 
     proceedings. This would provide a modest level of 
     transparency and accountability to the Supreme Court whose 
     members enjoy life tenure and decide so many cutting-edge 
     issues which border on making the law rather than 
     interpreting the law. There is little public understanding 
     about the Supreme Court's role even though it decides major 
     issues such as a woman's right to choose, the death penalty, 
     civil rights, 2nd Amendment gun rights, and the scope of 
     Congress's Article I power and the President's Article II 
     power.
       The Court declines to hear many important cases where 
     conflicting decisions are rendered by different Circuit 
     Courts of Appeals. That results in different treatment for 
     different litigants depending on what Circuit their case is 
     brought. It leaves uncertainty in other Circuits since there 
     is a question about which Circuit precedent should be 
     followed.
       The Court has time to resolve Circuit splits and hear many 
     other important cases which it declines since its docket is 
     so light compared to prior years. In 1886, the Supreme Court 
     decided 451 of the 1,309 cases on its docket. In 1926, the 
     Court issued 223 signed opinions. In the first year of the 
     Rehnquist Court, 1987, the Court issued 146 opinions. During 
     the 2007 term, the Court held argument in 75 cases and issued 
     67 signed opinions.
       Few Americans have any real opportunity to observe its 
     proceedings. Most who visit the Court for an oral argument 
     will be allowed only a three-minute seating, if they are 
     seated at all. Recently, the UK's highest court decided to 
     allow TV cameras into its courtroom. A recent C-SPAN poll 
     reveals that two-thirds of Americans support televising the 
     Court's proceedings.
       This Sense of the Senate Resolution differs from previous 
     legislative proposals in urging rather than requiring the 
     Supreme Court to permit TV coverage. While there is 
     substantial authority for Congress to require such coverage 
     based on analogous administrative matters, we believe the 
     milder approach should be followed first which may draw a 
     favorable response and would avoid any possible 
     confrontation.
       If you have any questions or wish to co-sponsor this 
     Resolution, please contact the undersigned or have your staff 
     contact Matthew Wiener (extension 4-6598) or Matthew Johnson 
     (extension 4-7840).
           Sincerely,
     Arlen Specter,
     John Cornyn.

  Mr. SPECTER. Mr. President, I ask unanimous consent to have printed 
in the Record an extensive floor statement and that the Congressional 
Record contain my introduction of the floor statement. Frequently, when 
the floor statement occurs right after the oral extemporaneous 
comments, the reader may wonder why the speaker is repeating himself on 
so many of the same points.
  So, I would like to have the full text as to what I am saying now 
appear in the Congressional Record so that it is understandable why the 
long text appears after so much of what has already been said.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Mr. President, I have sought recognition to introduce a 
     sense-of-the-Senate resolution urging the Supreme Court to 
     permit television coverage of its open proceedings.
       I have previously introduced legislation on the subject. In 
     the 109th Congress, I introduced S. 1768, on behalf of myself 
     and Senators Allen, Cornyn, Durbin, Feingold,

[[Page S11220]]

     Grassley, Leahy, and Schumer. It would have required the 
     Court to permit television coverage of its proceedings. On 
     March 30, 2006, the Committee on the Judiciary favorably 
     reported S. 1768 by a vote of 12 to 6. In the 110th Congress, 
     I introduced an identical bill, S. 344, on behalf of myself 
     and Senators Comyn, Durbin, Feingold, Grassley and Schumer. 
     On September 8, 2008, the Committee favorably reported the 
     bill by a vote of 11 to 8. Early in this Congress I again 
     introduced an identical bill, S. 446, this time on behalf of 
     myself and Senators Cornyn, Durbin, Feingold, Grassley, 
     Kaufman, Klobuchar, and Schumer.
       The resolution takes a more restrained and modest approach 
     than does S. 446 and its predecessors. It would do no more 
     than ``urge'' the Court to allow the television coverage of 
     its open proceedings (unless Court decides that television 
     coverage would violate a litigant's due-process rights, which 
     is unlikely).
       I urge the Senate to pass this non-binding resolution 
     rather than taking action on S. 446 at this time. My reason 
     is not that S. 446 may be unconstitutional. It is not. 
     Congress' well-founded authority to regulate various aspects 
     of the Court's activities--to fix the number of Justices who 
     sit on the Court (nine) and constitute a quorum (six), to set 
     the beginning of the Court's term as the first Monday in 
     October, and to establish the contours of its appellate 
     jurisdiction--would sustain S. 446 against a constitutional 
     challenge. Rather, I have four prudential reasons for 
     proceeding with a non-binding resolution at this time:
       First, the Court's most outspoken critic of television 
     coverage, Justice Souter, has retired. Justice Souter once 
     said that the ``day you see a camera come into our courtroom, 
     it's going to roll over my dead body.'' Several Justices have 
     indicated their reluctance to permit television coverage in 
     the face of opposition by a colleague. Justice Souter's 
     departure may lead his colleagues to revisit the issue. His 
     replacement, Justice Sotomayor, testified during her 
     confirmation hearings that she had favorable experiences with 
     television coverage while sitting on the court of appeals and 
     that, if confirmed, she would share her experiences with her 
     new colleagues. Some commentators have raised the possibility 
     that Justice Sotomayor will help convince her reluctant 
     colleagues that the time for television coverage has come. 
     (E.g., Editorial, ``Cameras in the Court,'' USA Today, July 
     13, 2009; Editorial, ``Camera shy justice: The Supreme Court 
     should be televised,'' Pittsburgh Post Gazette, July 7, 2009; 
     Editorial, ``Supreme Court TV,'' Los Angeles Times, June 11, 
     2009.) No one knows, of course, what Justice Sotomayor will 
     do. But we should at least give the newly constituted Court 
     some reasonable period of time to consider the issue.
       Second, a non-binding resolution is likely to draw more 
     support among Senators than a statutory mandate, and it need 
     not be passed by the House or signed by the President. There 
     is no reason to enact a law if a resolution will do.
       Third, the Court may receive a non-binding resolution more 
     favorably than a statutory mandate. The Court may perceive a 
     mandate as an affront to its constitutional autonomy as a 
     separate branch of government. Justice Kennedy suggested as 
     much during testimony before a Congressional committee. It 
     may even decide to ignore a mandate on the ground that it 
     violates the Constitution's scheme of separation of powers. 
     We need not provoke what might be an unnecessary 
     constitutional challenge.
       Fourth, the newly established Supreme Court of the United 
     Kingdom has just decided to allow cameras in its courtroom. A 
     press release announcing the Court's opening reports that 
     ``proceedings will be routinely filmed and made available to 
     broadcasters.'' (Supreme Court of the United Kingdom, Press 
     Release, Oct. 1, 2009.) The press release cites the need for 
     ``transparen[cy]'' and the ``crucial role'' that television 
     can play in ``letting the public see how justice is done'' 
     and ``increase[ing] awareness of the UK's legal system and 
     the impact the law has on people's lives.'' (Ibid.) When the 
     Court held its opening session just a few weeks ago, TV 
     cameras sat ``discretely'' in the corners of the courtroom, 
     according to the BBC. (BBC News, ``Supreme Court hears first 
     appeal,'' http://news.bbc.co.uk/2/hi/uk_news/8289949
.stm.) Hopefully the experience of the United Kingdom's 
     Supreme Court with television coverage will encourage our 
     Supreme Court to follow suit.
       My extensive floor statements of January 29, 2007, 
     introducing S. 246, and February 13, 2009, introducing S. 
     446, set forth compelling reasons for allowing television 
     coverage of the Supreme Court's open proceedings and also 
     explained why S. 445 is constitutional. (Cong. Record, Jan. 
     29, 2007, S831-34; Cong. Record, Feb. 13, 2009, S2332-36.) I 
     laid out those reasons again on August 5, 2009, when I 
     commented on the state of the Court during the floor debate 
     on now-Justice Sotomayor's nomination. (Cong. Record, Aug. 5, 
     2009, S880006.) This statement summarizes the key points of 
     and supplements my earlier statements.
       My main point was this: The American people have the right 
     to observe the Court's proceedings. But few Americans have 
     any meaningful opportunity to do so. There are well less than 
     a hundred oral arguments per year. Even those who are able to 
     visit the Court are not likely to see an argument in full. 
     Most will be given just three minutes to watch before they 
     are shuffled out to make room for others. In high-profile 
     cases, most visitors will be denied even a three-minute 
     seating. There are not nearly enough seats to accommodate the 
     demand. Those who wish to follow the Court's proceedings must 
     content themselves with reading the voluminous transcripts or 
     listening to audiotapes released at the end of the Court's 
     term. It should come as no surprise that, according to a 
     recent C-SPAN poll, nearly two-third of Americans favor 
     televising the Court's proceedings.
       The Court decides too many cutting-edge questions of 
     monumental importance to the American people--not just, as 
     Justice Scalia once suggested in opposing television 
     coverage, disputes between litigants--to deny them a 
     meaningful opportunity to observe its proceedings. Consider 
     just some of the issues the Court has decided in recent 
     years: whether local school districts may fulfill the promise 
     of Brown v. Board of Education by taking voluntary remedial 
     steps to maintain integrated schools (Parents Involved in 
     Community Schools v. Seattle School District No. 1, 551 U.S. 
     701 (2007)); whether public universities may consider race 
     when evaluating applicants for admission in order to ensure 
     diversity within their student bodies (Grutter v. Bollinger, 
     539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 2344 
     (2003)); whether citizens have a constitutional right to own 
     guns (District of Columbia v. Heller, 128 S. Ct. 2783 
     (2008)); and whether states may exercise the power of eminent 
     domain to take a personal residence in order to make room for 
     a commercial development (Kelo v. City of New London, 545 
     U.S. 469 (2005)).
       And in 2000, of course, the Supreme Court decided what was 
     perhaps the most important--and certainly the most 
     controversial--question of all: who the next president of the 
     United States would be (Bush v. Gore, 531 U.S. 98 (2000)). 
     Can anyone seriously contend that the American people were 
     not entitled to watch the oral argument in the case that 
     ultimately decided the Presidency? Or that reading a 
     transcript or listening to an audio was an adequate 
     substitute for watching the oral argument?
       Trends over the last few years show that the need for 
     public scrutiny of the Court's work, which only television 
     coverage can adequately provide, is now more important than 
     ever. None is more significant than the Court's declining 
     workload and willingness to leave important issues and 
     circuit splits unresolved.
       The Court's workload has steadily declined. In 1870, the 
     Court decided 280 of the 636 cases on its docket; in 1880, 
     365 of the 1,202 cases on its docket; and in 1886, 451 of the 
     1,396 cases on its docket. (E.g., Edward A. Hartnett, 
     ``Questioning Certiorari: Some Reflects on Seventy Five Years 
     After the Judges Bill,'' 100 Colum. L. Rev. 1643, 1650 
     (2006).) In 1926, the year Congress gave the Court nearly 
     complete control of its docket by passing the Judiciary Act 
     of 1925, the Court issued 223 signed opinions. The Court's 
     output has declined significantly ever since. In the first 
     year of the Rehnquist Court, the Court issued 146 opinions; 
     in its last year, the Court issued only 74. (E.g., Kenneth W. 
     Starr, ``The Supreme Court and Its Shrinking Docket: The 
     Ghost of William Howard Taft,'' 90 Minnesota Law Review 1363, 
     1367-68 (2006).)
       Chief Justice Rehnquist's successor, John Roberts, said 
     during his confirmation hearing that the Court could and 
     should take more cases. But it has not done so. During the 
     2005 Term, it heard argument in 87 cases, and issued 69 
     signed opinions; during the 2006 Term, it heard argument in 
     78 cases and issued 68 signed opinions; and during the 2007 
     Term, it heard argument in 75 cases and issued 67 signed 
     opinions. The numbers were much the same during the recently 
     concluded 2008 Term: The Court heard argument in 78 cases 
     and issued 75 signed opinions. A recent article in the 
     Duke Law Journal notes that ``[e]ven though it possess 
     resources unimaginable to its predecessors, including . . 
     . a bevy of talented clerks, the Supreme Court decides 
     only a trickle of cases.'' The article goes on to observe 
     that the ``most striking feature of contemporary Supreme 
     Court jurisprudence is how little of it there is.'' 
     (Tracey E. George & Christopher Guthrie, ``Remaking the 
     United States Supreme Court in the Courts' of Appeals 
     Image,'' 58 Duke Law Journal 1439, 1441-42 (2009).)
       As Kenneth Starr has observed, Congress gave the Supreme 
     Court control over what cases it hears so it can focus on 
     ``two broad objectives: (i) to resolve important questions of 
     law and (ii) to maintain uniformity in federal law.'' (Starr, 
     supra, at 1364.) It is clear that the Court has failed to 
     meet either objective and that only by putting its ``shoulder 
     to the wheel and working] harder,'' to quote Mr. Starr, can 
     it ever hope to do so. (Id. at 1385.)
       The Court continues to leave important issues unresolved. 
     Recently it even refused to decide the constitutionality of 
     the Bush Administration's Terrorist Surveillance Program--
     commonly referred to as the ``warrantless wiretapping 
     program.'' This program, which began soon after the 9-11 
     attacks, operated in secret until The New York Times exposed 
     it in 2005. Well-deserved public condemnation followed its 
     exposure. In 2006, a federal district court declared the 
     program unconstitutional. A divided court of appeals reversed 
     on the ground that the plaintiffs lacked standing to bring 
     suit, thereby leaving the merits unaddressed. In 2008, the 
     plaintiffs asked the Supreme Court to hear case, but it 
     declined. This year I introduced legislation (S. 877) to 
     require the

[[Page S11221]]

     Court to exercise jurisdiction over appeals challenging the 
     constitutionality of the Program.
       More recently, the Court refused to decide whether the 
     Foreign Sovereign Immunities Act shields Saudi Arabia and its 
     officials from damages suits arising from their apparent 
     complicity in the 9-11 terrorist attacks. Last year the 
     United States Court of Appeals for the Second Circuit ruled 
     (incorrectly, in my view) that the Act immunizes them from 
     suit. The victims petitioned the Court for certiorari. In its 
     certiorari-stage brief, the Solicitor General conceded that 
     the Second Circuit had misinterpreted the Act. But late last 
     year the Court denied the petition without dissent and, as 
     usual, without explanation. (In re Terrorist Attacks on 
     September 11, 2001 (No. 08-640).) The result will be to deny 
     legal redress to thousands of 9-11's victims.
       No less important, the Court also continues to leave too 
     many circuit splits unresolved. The article in the Duke Law 
     Journal I cited a moment ago notes that the Roberts Court 
     ``is unable to address even half'' of the circuit splits 
     ``identified by litigants.'' (George and Guthrie, supra, at 
     1449.) Mr. Starr notes that the ``Supreme Court by and large 
     does not even pretend to maintain the uniformity of federal 
     law.'' (Starr, supra, at 1364.) Among the questions on which 
     the circuits have recently split are: May jurors consult the 
     Bible during their deliberations in a criminal case and, if 
     so, under what circumstances? Must a civil lawsuit predicated 
     on a ``state secret'' be dismissed? Does the spouse of a 
     United States citizen remain eligible for an immigrant visa 
     after the citizen dies? Must an employee who alleges that he 
     was unlawfully discriminated against for claiming benefits or 
     exercising other rights under an employer-sponsored 
     healthcare or pension plan ``exhaust administrative 
     remedies'' (that is, first allow the plan to address his 
     claim) before filing suit in court? When does a collective 
     bargaining agreement confer on retirees the right to lifetime 
     healthcare benefits? May a federal court ``toll'' the statute 
     of limitations in a suit brought against the federal 
     government under the Federal Tort Claims Act if the plaintiff 
     establishes that the government withheld information on which 
     his claim is based? Is a defendant convicted of drug 
     trafficking with a gun subject to additional prison time 
     under a penalty-enhancing statute, or is his sentence limited 
     to the period of time provided for in the federal drug-
     trafficking law? When may a federal agency withhold 
     information in response to a FOIA request or court subpoena 
     on the ground that it would disclose the agency's ``internal 
     deliberations.'' Should a federal admiralty claim, to which a 
     jury trial right does not attach, be tried to a jury if it is 
     joined with a non-admiralty claim?
       Two developments since I gave my last floor speech have 
     served only to reinforce my conclusion that public scrutiny 
     must be brought to bear on the Court.
       The first is the Court's well-documented disregard of 
     precedent, which the Court took to new levels during its 2008 
     Term. (E.g., Erwin Chemerinsky, ``Forward, Supreme Court 
     Review,'' 43 Tulsa L. Rev. 627 (2008).) Consider three 
     especially significant opinions handed down just this year: 
     (1) 14 Penn Plaza, LLC v. Pyett, which held that an employee 
     can be compelled to arbitrate a statutory discrimination 
     claim under a collectively bargained-for arbitration clause 
     to which he or she did not consent, contrary to the Court's 
     thirty-five-year-old decision in Alexander v. Gardner-Denver 
     Co., 415 U.S. 36 (1974) ; (2) Gross v. FBL Financial 
     Services, Inc. (2009), which held that in age discrimination 
     cases, unlike cases brought under Title VII of the Civil 
     Rights Act of 1964, the employer never bears the burden of 
     proof no matter how compelling a showing of discrimination 
     the plaintiff makes, contrary to the Court's thirty-year-old 
     decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); 
     and (3) Ashcroft v. Iqbal, which gave license to district 
     court judges to evaluate the ``plausibility'' of a 
     complaint's allegations, contrary to well-established rules 
     of pleadings that date back at least fifty years to Conley v. 
     Gibson, 355 U.S. 41 (1957). Legislation to overturn each of 
     these decisions is now pending.
       Each of these examples reflects a second recent trend: the 
     Court's bias in favor of corporate interests over the public 
     interest. This has been the subject of extensive commentary. 
     One commentator, Professor Jeffrey Rosen, has characterized 
     the Court as ``Supreme Court, Inc.'' as a result of its 
     decidedly pro-business rulings. (Jeffrey Rosen, ``Supreme 
     Court, Inc.,'' The New York Times, Mar. 16, 2008.) Another, 
     Professor Erwin Chemerinsky, has characterized the current 
     Court as the ``most pro-business Court of any since the mid-
     1930's.'' (Chemerinsky, ``The Roberts Court at Age Three, 54 
     Wayne Law Review 947 (2008).)
       A final point: While the Justices have so far refused to 
     appear on television during open courtroom proceedings, they 
     have not been shy about appearing on television outside the 
     courtroom. Chief Justice Roberts and Stevens have appeared 
     for interviews on ABC's ``Prime Time,'' Justice Ginsburg on 
     CBS News, Justice Breyer on ``Fox News Sunday,'' and Justices 
     Scalia and Thomas on CBS's ``60 Minutes.'' All of the 
     Justices appeared for interviews that C-SPAN aired recently 
     during its ``Supreme Court Week'' series. Justice Breyer and 
     Auto even appeared on television to debate how the Court 
     should interpret the Constitution and statutes. We cannot 
     accept the Justices' plea for anonymity when they so 
     regularly appear before the camera.
       I note in conclusion that, since my last floor speech, the 
     media has continued to call for the televising of the Supreme 
     Court's proceedings. At least a dozen editorials have 
     appeared during 2009 alone. (E.g., ``Televised justice would 
     be for all,'' Boston Herald, August 7, 2009; ``Cameras in the 
     court,'' USA Today, July 13, 2009; ``Camera shy justice: The 
     Supreme Court should be televised,'' Pittsburgh Post Gazette, 
     July 7, 2009; ``Supreme Court TV,'' Los Angeles Times, June 
     11, 2009.) One editorial writer, The National Law Journal's 
     Tony Mauro, makes the case especially well, when he writes: 
     ``The Internet Age demands transparency from all institutions 
     all the time. Any government body that lags behind is in 
     danger of losing legitimacy, relevance and, at the very 
     least, public awareness. . . . It does not take a battery of 
     surveys to realize that the public will learn and understand 
     more about the Supreme Court . . . if its proceedings are on 
     view nationwide.'' (``Court, cameras, action! Souter's 
     departure could clear the way for far more transparency at 
     the Supreme Court,'' USA Today, May 27, 2009.) A list of 2009 
     editorials, as compiled by C-SPAN, is appended.
       Television coverage of the Supreme Court is long overdue. 
     It is time for Congress to act. I urge my colleagues to 
     support the resolution I am introducing today.

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