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A Renewed Call to Televise High Court

By Robert Barnes
Washington Post Staff Writer
Monday, February 12, 2007

With Supreme Court justices becoming increasingly comfortable in the spotlight, Sen. Arlen Specter says it might finally be time for their close-ups.

Spector (Pa.), joined by two other Republican and three Democratic senators, has refiled his legislation to require the court to televise its proceedings. Although getting the rest of Congress to agree still seems very much a long shot, Specter said there is a big difference between now and last year, when the bill did not reach the Senate floor.

"I think the frequency with which the justices are appearing on television can be a very significant factor" in changing minds in Congress, Specter said in an interview.

There is no doubt that the once-cloistered justices are making themselves more available to the media, giving on-the-record interviews with newspapers and magazines and popping up on television. Chief Justice John G. Roberts Jr. starred in PBS's recent look at the history of the court.

Specter, former chairman of the Judiciary Committee and sometimes a sharp critic of the court, said the individual justices have been "extensively televised."

"Chief Justice Roberts and Justice [John Paul] Stevens were on . . . on ABC TV," Specter said in introducing the bill on the Senate floor. "Justice Ruth Bader Ginsburg was on CBS with Mike Wallace. Justice [Stephen G.] Breyer was on 'Fox News Sunday.' Justice [Antonin] Scalia and Justice Breyer had an extensive debate last December, which is available for viewing on the Web -- and in television archives.

"So there has been very extensive participation by court members, which totally undercuts one of the arguments [against the bill]: that the notoriety would imperil the security of Supreme Court justices."

More substantive arguments -- that cameras would alter the deliberative nature of the court or that lawyers would play to television rather than answer the justices' questions -- are overruled by the importance of increasing the public's knowledge of the court, Specter said.

The court makes monumental decisions -- who lives and dies, in some cases, and in 2000, who should occupy the Oval Office -- but is a mystery to most Americans, Specter said.

"It is, I think, fundamental that the court's work, the court's operation, ought to be more broadly understood," Specter said in his floor speech. "That can be achieved by television."

While the Supreme Court is the most insular of the nation's public institutions, justices like to say they are already the most open. Every piece of paper that comes to the court -- petitions, briefs, decisions -- is a public document, justices say, and they contend that they are the only public officials who must explain the decisions they make.

"We're judged ultimately by what we write," Justice Anthony M. Kennedy told a congressional committee last year -- not on the oral arguments or the private conferences at which justices vote on decisions.

The court has made some concessions to modernity: Starting with Gore v. Bush in 2000, it has released same-day audiotapes in 16 high-profile oral arguments, and beginning this term, it has quickly posted transcripts of the arguments on the court's Web site.

But several of the justices seem unwilling to go further. Justice David H. Souter, perhaps the most publicity-averse of the nine, is famous for his statement that cameras will enter the chamber "over my dead body."

Justice Clarence Thomas is opposed, and while Scalia and Ginsburg have said they could support gavel-to-gavel coverage of oral arguments, Scalia acknowledges that is unrealistic. A frequent critic of Supreme Court journalism that he says reduces the court's complex decisions to whether "the good guys lost and the bad guys won," he said in 2005 that showing clips of the proceedings would "misinform rather than inform" the public.

The two newest justices, Roberts and Samuel A. Alito Jr., sounded open to the possibility during their confirmation hearings, and Alito favored allowing cameras in his previous job as an appellate court judge. But neither seems inclined to push the issue with justices who are opposed.

The issue of who decides seems as important to some justices as the decision itself.

"We feel strongly that we have intimate knowledge of the dynamics and the needs of the court," Kennedy told Congress last year, "and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches."

That just sets Specter off.

He runs off a long list of cases in which the court found fault with federal legislation, and he seems particularly peeved about a 5 to 4 decision striking down a domestic violence act, in which former Chief Justice William H. Rehnquist questioned Congress's "method of reasoning."

"When I read United States v. Morrison. . . I wondered what kind of a transformation there was when you leave the Senate chamber, where our columns are aligned exactly with the Supreme Court columns across the green, what kind of a transformation there was with method of reasoning that there is such superior status when going to the court," Specter said.

Such comments -- Specter also questioned the dwindling number of cases the court accepts and its process for reviewing petitions -- open the senator to criticism that his proposal for cameras seems born of pique more than concern.

"No, I respect their authority to make the final decision," Specter said. "But I think it ought to be known to the public."

Staff researcher Madonna Lebling contributed to this report.

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