Legislating Supreme Court TV
The start of another autumn ushers in two widely anticipated events: a new season of television programming, and the beginning of the Supreme Court's term. If a bipartisan group in the US Congress has its way, these fall traditions could soon converge.
Congress is currently considering a bill proposed by Sen. Arlen Specter (R) of Pennsylvania mandating that the court "permit television coverage" of all its "open sessions." The measure would allow the court to shut off the cameras if a majority of justices objected on the grounds that this coverage would cause unfairness to the parties of a case.
Do we really need such a law? Will "Supreme Court TV" make us better citizens or improve the quality of our public life?
Opponents have argued that Senator Specter's legislation will compromise the anonymity of the justices and threaten their security. They also contend that cameras in the court will diminish its mystery and formality, and, consequently, the respect it commands. But these seem like curious arguments to cling to in a political system that is supposed to thrive on openness and public scrutiny. While we need to be sensitive to the court's safety, particularly in an era of greater terrorist threats, justices hardly seem more vulnerable, or more vital, than other public officials who occupy our airwaves.
The argument about esteem is even more misplaced. The court has long been more respected by the public than Congress or the presidency, and this is unlikely to change with greater media coverage. Research suggests that even after the intense scrutiny generated by Bush v. Gore, the court's controversial decision involving the 2000 presidential election, the public's generally favorable views of the court changed hardly at all.
What benefits will "we the people" get out of greater Supreme Court coverage? While television does not clearly shift people's views about public policy, it can change what we look at. This spotlight effect could bring greater attention to the court, which remains one of our least understood and publicized institutions.
But even if it's a good idea, would Specter's legislation be constitutional? Could the justices – some of whom have vocally opposed the measure – eventually invalidate the bill if it became law?
One constitutional argument against the proposed law is that it would threaten the separation of powers. Mandating television coverage smacks of congressional meddling in the details of the court's internal operations.
But Congress already controls numerous aspects of the court's business, including the number of justices and the size of their salaries. Asking the court to televise proceedings that are already public would hardly diminish the judiciary's freedom to act more than these other well-accepted exercises of congressional power.
There is a second, stronger objection to the proposed legislation. Ours is supposed to be a Constitution of listed, or enumerated, national powers. Congress cannot pass a law unless the Constitution authorizes it to act.
The Constitution does give Congress authority to "make all laws which shall be necessary and proper for carrying into execution" the powers given to the federal government. So can Congress plausibly argue that televising Supreme Court proceedings is "necessary and proper" to advancing the "judicial power" which the Constitution vests "in one Supreme Court" and in whatever lower courts Congress chooses to create? At first glance, this argument seems a stretch. Whatever its shortcomings, the Supreme Court has operated well enough over the past 200-plus years without appearing on "C-SPAN3."
But this misses the real issue: Can Congress use its "necessary and proper" power to fill in the details governing the use of judicial power? For almost 100 years, Congress has, without controversy, compelled the Supreme Court to begin its new term on the first Monday in October. No one would pretend that it is necessary and proper for the Supreme Court to start its business on this particular date. But it surely is essential that the court's term have some start date and duration, so that those seeking rulings know what to expect.
Specter's legislation would provide analogous regulations – in this case, by specifying television coverage – for another judicial power: the authority of the court to make some of its proceedings open to the public. Specter is not asking our highest court to televise its secret conference discussions or put cameras in the private chambers of the individual justices.
Perhaps the most compelling argument against the Specter bill is not related to policy or law. The American public is already awash in media coverage and information. Do we really need more electronic stimulus in the form of "Supreme Court TV?"
For better or worse, it's ultimately up to American citizens to gather, sift, and interpret the information about public affairs made available to them. Certainly, we all make mistakes and misjudgments in our efforts to do this. But enhancing the flow of information from the court can only help us to better understand and monitor the most powerful judiciary in the world.
• Bruce Peabody is an assistant professor of political science at Fairleigh Dickinson University, in Madison, N.J.