In line with the post this week discussing the Michigan Law Review symposium on cameras in the courtroom, see here, I thought I would add a few more thoughts on the issue. Most commentators in the blogosphere seem to assume that Congress has the plenary power to mandate that Supreme Court arguments be televised. With some hesitation, Orin Kerr said the answer seems to be “clearly yes,” see here, and Ilya Somin.has stated that Article III, s 2, which says that the Supreme Court’s “appellate jurisdiction” shall be exercised under “such regulations as the Congress shall make,” provides the necessary constitutional hook for congressional power in this area. Even our own Marty Lederman has weighed in, arguing “that [mandating cameras in the courtroom is] well within Congress’s power,” though he recognizes that there is a “core” of judicial power that is not defeasible by statute. I am not sure of the ultimate answer to the question, but I suspect that there is more to Marty’s brief comment on the Volokh Conspiracy, see here, than at first meets the eye.
As anyone familiar with my scholarship knows, I am not a huge fan of inherent powers in most contexts. But the Supreme Court stated as early as United States v. Hudson and Goodwin (the famous case that articulated the doctrine of legality in criminal law) that certain powers inhere in a court. The most recognizable of these powers are contempt, administration of the bar, and docket management. There are others, but a dominant theme emerges: the Court must be able to, in the words of Hudson, “[e]nforce the observance of order.â€
Although there are not many Supreme Court cases that have addressed the outer bounds of the “core” of judicial power, if the Court meant what it said in Hudson, then it does not seem to be huge stretch to say that the issue of cameras in the courtroom falls within that “core” of judicial power that is not defeasible by statute. After all, the Court has repeatedly held that courts have the inherent power, for example, to hold parties in contempt to maintain order.
Many of the concerns stated by the Justices about televising oral arguments appear to be related to the observance of order, and in particular keeping away extraneous disruptions to the judicial process. Now one may disagree with the reasons given by the Justices, or believe that they are pretextual, but they are not all that different from the reasons given for the other inherent powers I listed (and the Court has upheld) above. According to many of the Justices, the fear is that introducing cameras into the courtroom will adversely impact the dynamics of oral argument. As Chief Justice Roberts stated in 2005, “[t]here’s a concern (among Justices) about the impact of television on the functioning of the institution.” Justice Souter has raised the possibility that televising oral arguments would be distracting, and Justice Kennedy has questioned whether it would impact the collegiality of the Court.
All of these objections taken at face value would seem to be about “enforc[ing] the observance of order in the [C]ourt,” or at least maintaining the decorum of the proceedings. Of course, the Justices have raised a number of other unrelated objections as well, such as the fact that the Justices might lose their anonymity if the proceedings were televised. But so long as they keep their arguments to those relating to the observance of order, it seems to me that they have a plausible constitutional objection to the forced introduction of television cameras into the courtroom.
[Special thanks go to Matt Melewski, one of my students this past semester, in raising some of these points to me and for assistance with this post]
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