Justice Kennedy Goes Too Far
Misreading the Constitution in a self-serving cause

Tuesday, April 18, 2006

JUSTICE ANTHONY M. Kennedy has complained recently that editorial writers seem to mouth off on his opinions without having read them. So we listened to his congressional testimony about cameras in the Supreme Court chamber with particular care to make sure we understood him properly. The court's resistance to cameras is not news. Had Justice Kennedy stuck to the usual litany of objections -- as Justice Clarence Thomas did --his testimony would have been unobjectionable apart from being wrong. But the justice went a big and inappropriate step further, suggesting without quite saying that the separation of powers may forbid Congress from requiring the court to liberalize its policy on cameras.

Justice Thomas outlined the court's concerns: Cameras would negatively affect the quality of oral arguments and would reduce the anonymity of the justices, thereby raising security concerns. Then Justice Kennedy declared: "We've always taken the position in decided cases that it's not for the court to tell Congress how to conduct its proceedings. . . . And we feel very strongly that we have an intimate knowledge of the dynamics and the needs of the court. And we think that proposals which would mandate -- direct -- television in our court in every proceeding [are] inconsistent with that deference, that etiquette, that should apply between the branches." What exactly Justice Kennedy meant by this is opaque; later in the hearing, he responded to a House member's suggestion that Congress could, in fact, pass such a bill by stressing his use of the word "etiquette." Still, his words contain more than a whiff of a threat: Pass such a bill, and we may strike it down.

For a sitting justice, speaking on behalf of a court with the power to strike down an act of Congress, to implicitly threaten to do so in an effort to lobby on any legislative matter is, at minimum, exceedingly poor taste. Judges are not supposed to give advisory opinions. But a justice ought to exercise particular caution on matters in which he and his colleagues have such a deep individual interest. No judge should be wielding hypothetical adjudications as a club in what is really a policy dispute.

This would be true even if the court's position on this question were reasonable. But it isn't. Not only do the justices bar cameras from proceedings that are open to the public, the court doesn't generally release the audio tapes it makes in a timely fashion, either. Even transcripts can take a long time to make their way to the court's Web site. So the public is totally dependent on press coverage of high court arguments. While that coverage is often excellent, reading a news story (or, as Justice Kennedy would certainly agree, an editorial) isn't the same as seeing an argument unfiltered by someone else's perceptions. A legislative effort to strike a more rational balance wouldn't offend the separation of powers. Justice Kennedy should not be dressing up the court's allergy to modernity in such robes.

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