Debate  |  Volume 156

Congress's Power To Compel the Televising of Supreme Court Proceedings


Last updated: May. 10, 2007

Debate - Congress's Power To Compel the Televising of Supreme Court Proceedings

In this debate, Professor Bruce Peabody, of Fairleigh Dickinson University, and Scott Gant, a partner at Boies, Schiller & Flexner LLP, discuss the constitutionality of proposed legislation that would televise the oral arguments and opinion readings of the Supreme Court. Professor Peabody believes that the constitutional basis for such legislation lies in the Necessary and Proper Clause because, as he argues, televising the Supreme Court not only “promot[es] judicial operations,” but also “furthers [] legitimate government . . . objective[s] . . . such as supporting Congress’s oversight role or keeping the public informed about public affairs.” Mr. Gant takes exception to the argument that the proposed bill is justified by the Necessary and Proper Clause. He argues that “[n]o one even pretends that televising oral arguments would improve them, or the process of litigating a case before the Court,” and concludes that “[l]egislation compelling the Court to televise its oral arguments does not pass muster” under the standard established in McCulloch v. Maryland.

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Opening Statement — Bruce G. Peabody

A Recent Proposal Requiring the Supreme Court To Televise Its Public Proceedings Is Constitutional

Associate Professor of Political Science, Fairleigh Dickinson University, Madison, N.J., and author of Supreme Court TV: Televising the Least Accountable Branch?, 33 Notre Dame J. Legis. (forthcoming 2007).

C-SPAN is closing in on its thirtieth anniversary of covering Congress, and the war in Iraq, among other developments, ensures that the executive branch is a relentless television presence. But political chatter is beginning to build about a potential new player in this television lineup of Washington potentates.  Members of Congress, along with a number of legal and political commentators, are showing increasing interest in a proposal to require the Supreme Court to televise some of its proceedings.  The measure, S. 344, introduced by Senator Arlen Specter, would air the Court’s “open sessions”—the oral arguments and opinion readings currently accessible only to the fortunate few who can view the Court’s work in person. The legislation under consideration would allow a “majority of justices” to turn the cameras off if coverage threatened “the due process rights of 1 or more of the parties before the Court.”

The Court is not exactly enthusiastic about this legislation or the attention it has generated.  Over the past year, Justice Anthony Kennedy has appeared twice before Congress to convey his opposition to televising the Court, and, implicitly, to the Specter bill.  During one of those presentations, Justice Clarence Thomas also expressed his reservations, stating that the proposal “runs the risk of undermining the manner in which we consider cases.”

To date, the legal objections raised by these and other Justices have been rather veiled, perhaps reflecting a sense that citing specific concerns would constitute an improper advisory opinion, a judgment outside of the context of an actual case or controversy.  But there is a possibility, perhaps even a likelihood, that if the Court continues to resist broadcasting its proceedings, Specter’s proposal, or one like it, will one day become law.  At that point, the Court may be afforded a more formal opportunity to evaluate the constitutionality of such a measure, assuming its validity is challenged in a judicial forum.

But if the Court confronts a law resembling the one currently being considered, it should affirm the legislation.  The proposed television bill is consistent with the Constitution’s text, traditions, and system of separated powers—notwithstanding the vague objections of the Justices.

Our analysis of this matter might begin by delineating the basis for the legislature’s authority to enact the television law.  While the Constitution bestows Congress with substantial leeway in determining the “Rules of its [own] Proceedings,” there is no explicit textual analogue establishing its general authority to shape the organization and rules of the Supreme Court.  Article III does empower Congress to make “Exceptions” to and “Regulations” of the Court’s appellate jurisdiction, and this might be a plausible basis for some proposals to televise the high bench.  But historically, these Article III controls have not been the legal touchstone for regulating the Court’s internal procedures and, in any event, the legislation currently being considered is not limited to televising appellate matters (even though these make up the overwhelming percentage of the Court’s docket).

A more general and perhaps less controversial basis for requiring the Court to televise its public proceedings can be found in Congress’s broad authority to “make all laws which shall be necessary and proper for carrying into Execution” the powers of the federal government. The Necessary and Proper Clause has been the presumptive constitutional basis for an enormous amount of legislation regulating the affairs of the judiciary and helping to carry “into Execution” the “judicial Power of the United States,” which the Constitution vests in the Supreme Court. For example, Title 28 of the U.S. Code includes numerous provisions through which Congress mandates how the Court conducts its business—from how many Justices sit on the Court, to what constitutes a quorum, to how “precedence” shall be recognized among Associate Justices, to what happens to gifts given to the Court or its members.

A skeptic might counter that the Necessary and Proper Clause only authorizes laws governing the internal affairs of the Court if the legislation clearly promotes the “judicial power” and, specifically, the work of the Court.  Under this reading, proposals to mandate “Supreme Court TV” should be deemed constitutionally suspect because members of the Court have contended that television coverage would impede their work by, for example, changing the dynamics of oral argument and jeopardizing the Justices’ relative anonymity and, consequently, personal safety.

Advancing the work of the judiciary, including the Supreme Court, is undoubtedly one valid application of the Necessary and Proper Clause.  For example, Congress’s establishment of a system of law clerks and its creation of a Marshal of the Court assist the Justices by enhancing their ability to winnow through petitions, craft opinions, and work in a secure environment.

The Necessary and Proper Clause is designed not simply to enhance the work of the judiciary, however, but to facilitate all the “Powers vested by th[e] Constitution in the Government of the United States.” Thus, the proposed television legislation is constitutionally sound if it furthers some legitimate government power or objective wholly separate from promoting judicial operations, such as supporting Congress’s oversight role or keeping the citizenry informed about public affairs. Arguably, legislation like the Freedom of Information Act (FOIA) is constitutionally defensible under these terms. If we don’t adopt this interpretation of the permissible applications of the Necessary and Proper Clause, Congress would seem to have almost no capacity to respond to a Court that sought to close its hearings entirely, keep its transcripts secret, or release them after a year—outcomes that surely run counter to our deepest commitments to governmental openness and accountability.

Moreover, the Necessary and Proper Clause historically has been the constitutional basis for legislation that serves a kind of administrative or “housekeeping” role, filling in the details of general policy areas, including those related to essential aspects of the Court’s operations, such as when the Court’s term begins.  Thus, pursuant to the Court’s opening of its building to the general public, Congress has passed laws regulating this access, stipulating where members of the public can travel (“sidewalks and other paved surfaces”) and how they may conduct themselves (they are forbidden from displaying signs, placards, or other forms of advertisement in the “[b]uilding or [on its] grounds”). These uncontroversial regulations bear considerable resemblance to the current television legislation. The Court already makes its proceedings available to the public through live observation, written transcripts, and audio recordings. The television bill would provide further specification, clarification, and expansion of the means through which the Court is seen and heard.

Even if one were to set aside these arguments and focus on the Necessary and Proper Clause as a provision limited to promoting the work of the Supreme Court and enhancing the administration of justice, this restricted conception does not necessarily address the question of who should determine what laws facilitate these ends. The Constitution identifies Congress, not the Court, as the nation’s chief federal policymaker, and presumably the legislature is generally best equipped to make cost-benefit and other analyses pertinent to assessing whether various legislative initiatives would enhance or diminish the work of our different institutions of governance.

But would the television proposal satisfy the test imposed by the most narrow application of the Necessary and Proper Clause—that is, would it actually facilitate the Court’s duties? While it is plausible that this television coverage could enhance the legitimacy and effectiveness, along with the profile, of the Court, the case is difficult to establish one way or the other.  There is a mixed and uncertain record regarding the effects of television coverage on the efficacy of other tribunals.  But this ambiguity actually underscores the argument that a court should not invalidate the proposed television legislation solely on the grounds that the bill purportedly fails to advance the work of the Court (and therefore strays beyond the Necessary and Proper Clause).

In addition to raising questions about its constitutional basis, opponents of the television bill have also hinted that it impinges upon the separation of powers.  As Justice Kennedy warned, “We think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches.”

It’s hard to know exactly what to make of this objection, but one might distill a separation of powers argument of the following form: A bill requiring the Supreme Court to televise its proceedings, even those it already makes available to the public, would encroach upon the Court’s Article III “judicial Power.”  In addition to infringing upon the Court’s authority, the television proposal would inappropriately shift inherently judicial powers to the Congress.

On one level, this objection seems tethered to a rather cramped and unrealistic view of the separation of powers.  As noted previously, Congress has long exercised enormous discretion over the functioning of the judiciary, making rules and policies that impact the Court’s work and even shape its very judgments (while the Court promulgates federal rules, for example, they are ultimately subject to Congress’s approval and amendment). The Court can’t insist that every one of these regulations is a violation of the separation of powers; the Constitution and our legal traditions implicitly recognize the legislature as our general federal rule-making body even for the other branches of government.

But presumably, there are some central elements of the Court’s authority that cannot be impeded upon by Congress without compromising what The Federalist No. 51 called “that separate and distinct exercise of the different powers of government.”  For example, a federal law stipulating that the Court could not publish dissenting opinions would threaten its institutional responsibility to decide cases and controversies, and thereby amount to a violation of Article III.

Does the proposed television bill look more like a permissible regulation or an encroachment upon the Court’s core Article III duties?  As already indicated, the television bill seeks to provide greater access to one of the central institutions of American government and, in so doing, it furthers the legitimate interests of public awareness and judicial accountability.  Requiring the Court to televise proceedings it already makes available to some members of the public, so long as this coverage does not impede individual liberties, does not represent a substantive alteration of the Court’s institutional role, nor does it inherently jeopardize the Court’s ability to evaluate and judge specific cases. Indeed, given our current capacity to install television cameras in an unobtrusive manner, the proposed law should not really change how the Court conducts its business at all. The proceedings of the Court should look no different before and after the cameras are installed.

Perhaps, however, television cameras will threaten the Court’s Article III powers more indirectly.  Several commentators, including Justice Breyer, have expressed concern that television coverage of the Court might damage its prestige and reputation, thereby impeding its effectiveness and ability to perform its constitutional responsibilities.  As Justice Rehnquist once asserted, frequent appearances of the Justices on the “six o’clock news every night” would lessen “the mystique and moral authority” of the Court.

But, setting aside the question of whether this concern is even plausible as an empirical matter, it’s not obvious that courts should invalidate a bill on constitutional terms simply because it could have a negative effect on an institution’s “mystique and moral authority.”  Arguably, for example, both FOIA and the (now lapsed) independent counsel statute have diminished the mystique and authority of the executive branch, but this fact alone does not make these measures constitutionally suspect.

In sum, there are compelling reasons for believing that mandating television coverage of the Supreme Court is compatible with the regulatory traditions as well as the underlying logic of the Necessary and Proper Clause, and the Constitution as a whole. Moreover, the proposed law would not run afoul of our commitment to separated institutions and powers.  The time has come for the Supreme Court to join the other branches of federal government in accepting the greater accountability, transparency, and democracy that accompanies televised proceedings.  If the Court won’t make this transition on its own, Congress can employ its constitutional powers to guarantee the public a valid means for scrutinizing the most powerful court in the world.

Rebuttal — Scott E. Gant

Televising the Supreme Court

Partner at Boies, Schiller & Flexner LLP, and author of We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age (2007), as well as numerous articles on constitutional law.

I admit it. I enjoy watching Supreme Court oral arguments. The grilling of the lawyers. The interplay among the Justices. Hints of the decision to come. It's fascinating stuff.

Unfortunately, despite working thirty minutes from the Court, I only make it to oral arguments every now and then. If the Court’s arguments were televised, I’d surely be one of the most loyal viewers. But I’m not sure that televising oral arguments would be good for the Court, or for the country. More important, however, is that I’m fairly certain a law forcing the Court to televise oral arguments would be unconstitutional.

Professor Peabody appropriately focuses his attention on the possible sources of constitutional authority to enact such a law. Although we often seem to forget it, there are limits on Congress’s power. The Court has observed many times what the Constitution itself makes clear: Congress may act only if authorized by one of the powers delegated to it by the Constitution. In my judgment, none of the powers assigned to Congress allow it to force the Court to televise its proceedings over the latter’s objections.

Congress is vested with broad authority to legislate—particularly under provisions like the Commerce, Spending, and Necessary and Proper Clauses of the Constitution. Yet among these, only the Necessary and Proper Clause provides anything resembling a credible justification here.

Article I, Section 8 of the Constitution empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution” both the specific legislative powers granted to Congress by the Constitution, as well as “all other Powers vested by th[e] Constitution in the Government of the United States.” Since the Constitution establishes a Supreme Court and empowers Congress to create other “inferior” courts, it has long been recognized that Congress, acting pursuant to the Necessary and Proper Clause, may enact laws regulating the federal courts. With respect to the Supreme Court, for instance, Congress has established by statute the number of Justices on the Court, what constitutes a quorum for the Court’s activities, and the opening date of the Court’s term. Congress’s authority to create procedural rules governing the operations of the courts is particularly well-established and uncontroversial. As the Court wrote in Burlington Northern R.R. Co. v. Woods, “Article III of the Constitution, augmented by the Necessary and Proper Clause . . . empowers Congress to establish a system of federal district and appellate courts and, impliedly, to establish procedural Rules governing litigation in these courts.”

Of course, Congress’s authority under the Necessary and Proper Clause is not unlimited. The Court itself long ago appropriately rejected a rigid view of the Necessary and Proper Clause under which an act of Congress would have to be “absolutely necessary” to the exercise of an enumerated power for the action to be supported by the Clause. But the Necessary and Proper Clause does not empower Congress to enact any law it fancies. In McCulloch v. Maryland, the Court explained when the Clause supports congressional action: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” For the nearly two centuries since McCulloch, the Court has adhered to its view that the Clause authorizes only action “appropriate” and “plainly adapted” to the pursuit of “legitimate” ends.

Legislation compelling the Court to televise its oral arguments does not pass muster under this standard. Consider an effort to justify the Specter proposal on the grounds that it facilitates or advances the execution of the “judicial Power” created by the Constitution. Such an argument would be difficult to sustain. I have yet to hear a serious explanation that relates the bill’s purposes to anything having to do with the case before the Court in which the argument would be broadcast. No one even pretends that televising oral arguments would improve them, or the process of litigating a case before the Court, in any way, and the fact that Congress has enacted other rules regulating the activities of the Court tells us little about whether it may enact a bill like Senator Specter’s.

Given the problems with defending this legislation on the basis that it is conducive to the administration of justice or otherwise advances the work of the judiciary, Professor Peabody understandably does not dwell on this ostensible justification. He, like the members of Congress promoting the legislation, looks elsewhere.

Leaving aside that some sponsors of the legislation sprinkle their rationale for the law with complaints about the outcomes of recent Court decisions, the more dispassionate explanations tend to invoke two goals: (1) increasing public information and knowledge about the Court’s work, and (2) enhancing “accountability” of the Justices and scrutiny of their decisions. Professor Peabody sounds a similar note, defending the law on the grounds that it would promote “Congress’s oversight role or keep[] the citizenry informed about public affairs”—aims he believes Congress can pursue in accordance with its authority under the Necessary and Proper Clause.

Professor Peabody cleverly analogizes these objectives to underlying statutes like the Freedom of Information Act (FOIA), claiming that if we “don’t adopt this interpretation of the permissible applications of the Necessary and Proper Clause, Congress would seem to have almost no capacity to respond to a Court that sought to close its hearings entirely, keep its transcripts secret, or release them after a year . . . .” This argument proves considerably too much.

Even if Congress has the power (under the Necessary and Proper Clause, or otherwise) to enact certain legislation providing the public with more information about government decisions and decision making, or promoting government accountability, that does not mean all legislation motivated by those aims is authorized by the Constitution. Recall McCulloch v. Maryland: Congress’s actions must be “appropriate” and “plainly adapted” to the pursuit of “legitimate” ends.

Assuming the legitimacy of the ends here, a law mandating the televising of the Court’s oral arguments is not “plainly adapted” to them. In stark contrast to a law like FOIA, which gives the public access to enormous amounts of otherwise unavailable material, televised oral arguments add little to the body of available information about the Court and its decisions. Today, the Court routinely makes available oral argument transcripts the same day they are prepared, and also sometimes releases audio recordings to the public. The marginal increase in information accessible to the public by virtue of having video images from the Court’s arguments cannot reasonably be viewed as materially advancing Congress’s ability to conduct “oversight” of the Court during the proceedings, and certainly would have no impact on the ability of the public to learn about the Court’s decisions, which are available for free on the Court’s website.

At the same time, there are good reasons to view this proposed law as an attempt to impair the authority or independence of the Court. It is no secret that most of the current members of the Court oppose televising oral arguments, with Justice Souter famously declaring it would happen over his “dead body.” Moreover, an examination of statements by the sponsors of Specter’s bill suggests that, for some at least, this initiative is animated by displeasure with the Court, and has a punitive dimension. While the relevance of legislative motive in assessing the constitutionality of a statute is legitimately subject to debate, these statements make clear that separation of powers considerations are implicated by an effort to force the Court to televise its oral arguments. And when congressional action may jeopardize the authority or independence of the executive or judiciary, claims of congressional law-making authority should be subject to heightened scrutiny. A law requiring the Court to televise its proceedings can only be supported by a reading of the Necessary and Proper Clause that seemingly places no meaningful limits on Congress’s power, and lacks due regard for the separation of powers principles that infuse the Constitution.

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