Separation of Powers a Concern as Senate Debates Broadcasting High Court

"It shouldn’t be a once-in-a-lifetime experience to see the [Supreme Court] in action,” said Subcommittee Chairwoman Amy Klobuchar, D-Minn., a co-sponsor of S-410. The court is technically open to the public, but seating is limited and “99 percent” of Americans don’t live in Washington, D.C., she said. The Senate bill allows certain cases not to be filmed if the justices believe participants’ due process rights would be violated, she noted. Klobuchar added that SCOTUS proceedings are already taped on audio and broadcast afterward, so cameras seem unlikely to change how justices act during a case. The best way to keep government accountable is to make it more open and transparent, said S-410 sponsor Sen. Chuck Grassley, R-Iowa. Most Americans say they lack adequate access to the Supreme Court, he said.

"If it ain’t broke, don’t fix it,” countered Ranking Member Jeff Sessions, R-Ala. Congress “should be cautious about making significant changes” to the court when there is nothing seriously wrong with how it works, Sessions said. The senator said he worries that televising the court would politicize a body that’s supposed to rule objectively. The justices have raised concerns that televising their court could hurt their collegiality and overall ability to make objective decisions, Sessions said. Congress should defer to the justices, he said: “They don’t tell us how we run our offices here."

The justices may think the court is their domain, but it’s not, said former Sen. Arlen Specter of Pennsylvania. “It’s the public’s domain and it ought to be accessible to the public.” Congress has authority to set some procedural rules for the Supreme Court, for example how many justices make up a quorum, Specter said. Specter, who has caucused with both parties but was most recently a Democrat, has long advocated for televising the courts. Chief Justice Mark Cady of the Iowa Supreme Court in Des Moines said televising and Web streaming his courts’ proceedings has engaged his state’s citizens in the judicial process. “Cameras expose courts to what they do and what they are: a proud institution of justice,” Cady said.

But several witnesses said the legislation could violate the separation of powers established in the Constitution. “This legislation would be unconstitutional,” because it would “strip the [Supreme Court] of its historic authority” to set the rules for its own proceedings, said Maureen Mahoney, an attorney with Latham & Watkins and former U.S. deputy solicitor general who has argued before the court. Televising arguments is “inevitable” without legislation and it’s not worth it to risk a constitutional fracas, said Thomas Goldstein, partner of the Goldstein & Russell law firm and founder of the popular SCOTUSblog. The justices know best how televising would affect their work, and have hesitated to embrace cameras in the courtroom, said Chief Judge Anthony Scirica of the 3rd U.S. Circuit Court of Appeals in Philadelphia. The justices’ hesitation should “give pause” to Congress seeking to make rules for an equal branch of government, he said.

Sen. Richard Blumenthal, D-Conn., believes the legislation would survive a separation of powers test, he said. Congress has authority to move the Supreme Court into a larger building with more seats, so Congress should also have the ability to open SCOTUS proceedings to a larger audience by putting them on TV, he said. Klobuchar said she sees nothing unconstitutional about S-410, but agreed it would be ideal if the Supreme Court let cameras in without legislation.

S-410 awaits a markup in the Judiciary Committee. A similar bill in the House (HR-2802) is not much further along and awaits a vote by the House Judiciary Subcommittee on Courts, Commercial and Administrative Law. At the hearing, Specter asked Senate Majority Whip Dick Durbin, D-Ill., what he was doing to push S-410 through the Senate. Specter said S-410 cosponsor Durbin had promised to carry the torch after Specter left the Senate.