A note to Chief Justice John Roberts:
With all due respect, you are providing me a terrible media experience. Earlier today, your court released audio and a transcript of the oral arguments from this morning, the first of three days of heavy-duty lawyering surrounding the Affordable Care Act.
So I put on my headphones to dig in on all the legalities. First takeaway: You folks are really smart. Second takeaway: Who on earth is that? And that? And that?
At 21:01, for instance, a smart woman interrupts the speaker. She says:
Mr. Long, you said before, and I think you were quite right, that the Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue.
Would that be Justice Sonia Sotomayor, Justice Elena Kagan or Justice Ruth Bader Ginsburg?
A couple of minutes later, some guy referring to his “law clerk” jumps in on the debate:
The best collection I’ve found in your favor, I think, is in Mortimer Caplin’s brief on page 16, 17. He has a whole list. All right. So — I got my law clerk to look all those up. And it seems to me that they all fall into the categories of either, one, these are penalties that were penalties assessed for not paying taxes, or, two, they involve matters that were called by the court taxes, or, three, in some instances they were deemed by the Code to be taxes.
So who’s that guy?
A review of the transcript reveals that these two folks are Ginsburg and Justice Stephen Breyer, respectively. Mr. Robert Long is described in the transcript as “For Court-appointed amicus curiae.” That’s helpful.
Though I try to keep up on my civic affairs, I cannot voice-identify the Supreme Court justices. Perhaps I could play Justice Antonin Scalia by ear, but only on one of my sharpest auditory days. But Breyer v. Kennedy? Or Roberts v. Alito? Fail, each time. The upshot is that if I am to follow the proceedings of your great panel, I have to plug into the audio and follow along with the transcript at the same time.
Maybe that’s the sort of sacrifice you demand of people who dare to inform themselves on the doings of the Supreme Court. At a time when everyone — companies, government agencies, nonprofits, media outlets — is trying to make it easier for people to stay in touch, you keep the bar high. Perhaps it makes sense in an occupational sort of way; courts are used to observing standards, putting laws through constitutional “tests” and the like. So maybe you’re putting citizens through the paces.
And just how much of a leap is video, anyhow? The audio reveals the stutters and stammers. The transcript reveals the words and the thinking. Are you folks really that scared of your facial expressions and body language? Because all that’s left are the visuals.
The rationale for suppressing them is as weak as ever. Scalia made the case years back:
I wouldn’t mind having the proceedings of the Court, not just audioed, but televised. If I thought it would only go out on a channel that everybody would watch gavel to gavel. But if you send it out on C-SPAN, what will happen is for every one person who sees it on C-SPAN gavel to gavel — so that they can really understand what the Court is about, what the whole process is — 10,000 will see 15-second takeouts on — on the network news, which I guarantee you will be uncharacteristic of what the Court does. So I have come to — to the conclusion that it will misinform the public rather than inform the public to have our proceedings televised.
The policy amounts to condescension framed by Corinthian columns: The people aren’t smart enough to understand. It’s a point that would never withstand the heat of an oral argument, that’s for sure. Counsel, if you say that the people cannot understand “15-second takeouts” on television, how can they be expected to understand the excerpts of proceedings that long have run in newspapers and magazines?
The only impact of the no-cameras rule is to create a subset of Washington’s elite class. Beltway insiders, reporters from top news services and those that have the time and/or money to wage prolonged stand-ins on a hard surface are the only ones who get to see the proceedings in all their sensory dimensions. These elites walk in and out of a building dedicated to equality.