[Congressional Record (Bound Edition), Volume 153 (2007), Part 2]
[Senate]
[Pages 2457-2462]
[From the U.S. 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 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.

[[Page 2458]]

  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 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:


[[Page 2459]]

       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 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

[[Page 2460]]

     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 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

[[Page 2461]]

     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 2462]]



     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.

                          ____________________