In a show of bravado in The Washington Post, Sen. Arlen Specter (R-Pa.) admonished the Supreme Court for daring to invalidate laws passed by Congress, and in retribution proposed the unthinkable-truly the “nuclear option” against the Court: video coverage of oral arguments.
Say it ain’t so, Arlen.
If one wanted to come up with ways to get back at the Court, there are far better avenues than letting CNN set up shop in the courtroom. Like, say, making judicial appointments ten years rather than for life, or making the Justices “ride circuit” by serving on the Courts of Appeal during their vacation time in the summer. “The Real World: Supreme Court” just isn’t that scary a proposition.
Not to mention it’s just a bad idea. Although Sen. Specter snaked Justice Brandeis’ oft-cited quote, “Sunlight is . . . the best disinfectant,” to argue that TV cameras would somehow compel the Justices to mend their evil ways, one only needs to look at C-SPAN’s coverage of Congress to realize it did a piss-poor job of preventing the whole Abramoff mess. TV doesn’t eliminate corruption; it only changes it.
Besides, TV coverage of oral arguments would actually do a disservice to the public. Oral argument is arguably the least important part of any appeal. Far from offering a look into the issues of a case, oral argument more often than not resembles a janitorial sweeping of the dance floor after the party’s over.
Before the Justices even decide on whether to take a case or not, they’ve already had a law clerk analyze the facts and issues involved to determine whether the case poses a significant question worth resolving. A prime example of this is the “circuit split,” where the Courts of Appeal have disagreed on a given legal issue. Then, if the Justices take the case, both sides of the case submit legal briefs on the issue that are usually quite exhaustive. (Remember, the case doesn’t usually get to the Supreme Court until having slogged its way through a trial court and a Court of Appeal. Therefore, much argument over the legal issues has already been had.) By the time the Justices have read the entire record, the briefs, and the analysis of their clerks, you can rest assured that the Justices have a solid, if not complete, grasp on the case before them.
When coupled with the fact that the Justices all have extensive knowledge of the legal environment and have pretty well-thought-out views on the law already, the simple fact is that before appellant’s counsel breathes one word in the hallowed courtroom, the Justices already know how they’ll vote on the case. They might want to use argument to clear up a couple of things, but their view of the case is already established. It’s all over but for the shouting.
So what is the point of oral argument? It’s tradition, for the most part, and we lawyers love the art of vocal jujitsu. Even if the cause is lost, every lawyer wants to feel like they’ve had a chance to work some magic at the podium to save the day for their client, even if it’s just a mirage.
But that point would be lost on the public watching on TV. Not knowing the substance of the briefs and record already submitted to the Court, viewers might be led to believe that the decision of the case could hang on every word. If counsel stumbles a bit in the answer to a Justice’s question, aha!, her side must be in trouble! Or if a Justice is slinging question after question at an advocate, perhaps that Justice is “on the fence.” And if a Justice just sits there quietly (like Justice Thomas almost always does), what might that mean? That they haven’t read the case?
While TV cameras can help the average channel-surfer get a feel for whether a given witness at trial is credible, there’s just no corresponding insight into how the Court is going to go or should go. Some have proposed that whichever side gets more questions tends to be the side that loses, but even that’s too rough and rude a ruler for something as sophisticated as the Court. Even veteran Court-watchers stand in awe of the opacity of the Court’s poker face. Unless TV cameras were allowed in the conference room where the Justices discuss the cases after argument has been heard, we will still be in the dark.
But you can bet that things would change on counsel’s side. An advocate feeling that their side is weak might as well start grandstanding before the cameras as if the Justices were just another jury. Pithy quips that would get a stern eye from the bench might play well to the home crowd. How this helps the law is anybody’s guess.
To be sure, this isn’t about preserving the “majesty” of the Court. No TV camera could ever take that from it. But assuming the public understands the issue before the Court and is interested in hearing more about it (big assumptions, both), video broadcasts of oral argument would accomplish no more than the audio recordings already made available, and are actually more likely to lead the unsavy viewer astray. And worst of all, from Sen. Specter’s view, the Court still won’t change a bit.
James N. Markels is an attorney and a regular columnist for Brainwash.