Anyone following the contentious arguments over immigration policy is in for a real treat on Monday: a carefully organized debate, broadcast nationwide on C-SPAN (9 AM PDT), over Arizona’s controversial new law aimed at cracking down on illegal aliens.
The participants will be two experienced lawyers: John Bouma, chairman of a big Phoenix-based law firm, representing Arizona, and Edwin Kneedler, a deputy U.S. solicitor general for the federal government. The forum will be a federal courtroom in San Francisco before a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
One month later, the U.S. Supreme Court on Dec. 8 will be the forum for a similar debate over an earlier Arizona law that seeks to raise the penalties, for workers and employers alike, of hiring undocumented aliens. On that day, however, the only members of the general public who will be able to hear the arguments in real time will have to line up hours beforehand to claim one of the coveted 300 seats inside the courtroom.
Thirty years after the Supreme Court gave a green light to television coverage of state court trials, the court continues to close its doors to cameras. Whatever other courts may think about this no-longer-newfangled medium, the justices will have none of it, at least not yet.
The resistance continues despite the justices’ awareness of the interest in the issue across in the street in the U.S. Capitol. The Senate Judiciary Committee in June approved a bill (S. 446) that would require the court to allow television coverage of oral arguments. A companion resolution (S. Res. 339), approved by the same, bipartisan 13-6 vote, would skirt separation-of-power issues by expressing “the sense of the Senate” that the court should allow TV coverage.
Both measures were sponsored by Sen. Arlen Specter, the Pennsylvania Republican-turned-Democrat now in the final months of his 30 years in the Senate. Specter has been dogged on the issue for years and has raised it at confirmation hearings for Supreme Court nominees.
With their confirmations at stake, Supreme Court nominees profess open-mindedness on the subject. “I don’t have a set view on that,” the future chief justice, John G. Roberts Jr., told Specter during his confirmation hearing in September 2005. “It’s something that I would want to the listen to the views of if I were confirmed to my colleagues.”
Less than a year later, however, Roberts had listened to his camera-shy colleagues and come around. “There’s a concern about the impact of television on the institution,” Roberts said in July 2006 to a conference of federal judges. “We’re going to be very careful before we do anything that might have an adverse impact.”
In fact, the justices are not unanimous on the subject. Stephen G. Breyer says cameras will “inevitably” come to the court. Like Breyer, two other justices Samuel A. Alito Jr. and Sonia Sotomayor supported television coverage when they were serving on federal appeals courts.
The newest justice, Elena Kagan, voiced enthusiastic support for the idea in her confirmation hearing in June. “I think it would be a terrific thing to have cameras in the courtroom,” Kagan said. “When you see what happens there, it's an inspiring sight.”
With David H. Souter gone he promised that television cameras would come in over his dead body the avowed opponents on the court number three: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Kennedy fears some unstated negative effect on the court’s “dynamic.” Thomas too says it would be bad for the court without saying how. For his part, Scalia simply mocks the idea of open government by saying that the court’s arguments should not become fodder for “entertainment.”
Despite those views, the court opened the term with what seemed to be a major step into media sunshine. The court announced that audio recordings of oral arguments would now be available on the court’s Web site by the end of the argument week. Previously, recordings were available only through the National Archives after the end of the term.
The move turned out, however, to be a head-fake. Without saying so, the justices at the same time discarded the practice of making arguments in major cases available on the same day. That practice, which originated with Bush v. Gore in 2000, had allowed radio and TV news outlets to air expanded, same-day coverage of big cases just when the public was paying close attention.
Ostensibly, the justices wanted to skirt the problem of deciding which cases warranted same-day release. The effect, however, has been to eliminate any news media interest in excerpting arguments a few days after. One suspects that at least some of the justices are pleased with that result.
With a lame-duck congressional session approaching, a coalition of open-access groups led by the American Civil Liberties Union is urging Congress to move on the issue after the election. “Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” says Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel. With many other issues demanding lawmakers’ attention, however, the prospects for action this year seem very slim.