Hidden Justice(s)

By Arlen Specter
Tuesday, April 25, 2006

The U.S. Supreme Court was under siege on Dec. 11, 2000. TV vans and their giant satellite dishes surrounded the courthouse, while inside the election of a president of the United States was about to be decided, in the case of Bush v. Gore . And yet, in a city where the piercing eye of television examines almost everything, there were no cameras covering this momentous event, just as there is no televised coverage of any proceeding before the justices. It's time for that to change.

The Supreme Court itself articulated the rationale for televising its proceedings a generation ago, in 1980, when it stated in Richmond Newspapers v. Virginia that a public trial belongs not only to the accused but to the public and press as well. The court added that people now acquire information on court procedures chiefly through the print and electronic media. Yet, while reporters with pen and pad are admitted to the court's chambers, cameras and microphones continue to be excluded.

So far the justices have steadfastly rebuffed all efforts to get them to open their public proceedings to electronic coverage. But is theirs the final word? Consider: No one has denied Congress's legislative authority to decide key issues governing the Supreme Court, such as: when the court's term begins (the first Monday in October), the number of justices (nine; remember Franklin D. Roosevelt's efforts to raise it to 15?), the number of justices that constitute a quorum (six). Acts of Congress govern the federal courts regarding establishment of jurisdiction in civil and criminal cases, speedy-trial rules and time limits in deciding habeas corpus cases.

Justices Anthony Kennedy and Clarence Thomas, in recent testimony before a House appropriations subcommittee, objected to a bill I have sponsored that mandates television coverage of the Supreme Court unless it is barred by the court on a case-by-case basis on the grounds that it would adversely affect the proceedings. The two justices insisted that Congress should mind its own business and respect the court's autonomy, just as the court has respected Congress's autonomy.

But does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

I agree that our constitutional system is best served by giving the Supreme Court the last word, but there is no doubt that congressional procedures and authority have been severely diminished by the court. And the public needs to be able to assess these issues by shining a televised light on the justices.

As our constitutional system has evolved, the Supreme Court has come to decide the cutting-edge issues of the day: the right to live, the right to die, freedom of speech and religion, war powers, congressional authority, voting rights, affirmative action and the death penalty.

If the public understood the extent of the court's power, perhaps the electorate would insist that Congress do its job on a variety of issues -- including desegregation, Guantanamo Bay detainees, eminent domain and defendants' rights -- instead of punting to the court. Or perhaps the public would insist that our presidents nominate justices with sensitivity to these matters.

While we have come to accept the maxim that the Constitution is what the Supreme Court says it is, it is in the public interest for the public to at least know what the court is doing. By analogy to Justice Louis Brandeis's famous dictum that, "Sunlight is . . . the best disinfectant," television's klieg lights in the Supreme Court would be the public's best informant.

The writer is a Republican senator from Pennsylvania and chairman of the Senate Judiciary Committee.

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