Can Chuck Schumer (D-NY) turn the Supreme Court into another dog and pony show? He is trying, and with the help of at least one Republican, he and his Democrat colleagues in the Senate might succeed in debasing the high court.
Senate bill 822 is titled “A bill to permit the televising of Supreme Court proceedings.” It is a re-hash of the Cameras in the Courtroom Act and requires the Supreme Court to admit cameras with little exception.
‘‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court.’’
That’s about it – and its brevity is the only good thing it has going for it. In addition to being wholly unconstitutional, more on that to come, this law’s passage (if honored) would be most unfortunate for the Court and the country because of the Hawthorne or observer effect. According to this theory, simply observing a situation or phenomenon necessarily changes it. Consider the Kavanaugh nomination hearings as evidence.
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When the Senate Judiciary Committee heard the Kavanaugh nomination last year, Schumer orchestrated a continuous series of interruptions. Starting a few seconds after the gavel fell, senators themselves, as well as their invited guests, and gallery members took delight in interrupting the proceedings. The burlesque went on for days, and then-Chairman Grassley (R-IA) took heat from his own party for not asserting order, allowing the hijinks to continue. Schumer’s Judiciary Committee Democrats’ sideshow would drive massive fundraising, along with narratives, with the help of a compliant and sympathetic legacy media.
There were breathless headlines about the court this week: “Clarence Thomas has regained the power of speech!” “Justice Thomas Breaks 3 Years of Silence,” “Clarence Thomas Breaks His Silence,” and “Clarence Thomas Actually Spoke During a Supreme Court Hearing” are a sampling of the chatter over a question Thomas asked during oral argument. He has a history and reputation of keeping quiet during oral arguments and repeats that he learns more when listening, rather than speaking, in explaining the silence. What will the coverage look like if the Court televises its arguments? Is it possible the quality of argument and discussion will be raised?
There’s another problem with the proposed law. It seems to be plainly unconstitutional. The Judiciary is the co-equal to the Congress and the Executive. No one branch gets to tell another how to operate. Not even if two branches agree do they get to decide how the third does its business. Only the Constitution of the United States itself provides the rule book for how each branch conducts itself, and as currently situated, it gives no power to the Congress to control what recording devices are permitted in the courtroom during oral arguments.
Justice Roberts will be the decider here. He is the chief executive of the Judiciary, and it will be up to him, should the law be passed, to hold steady. This is not an appeal to Luddites or in favor of concealing the business of the Court. SCOTUS holds its hearings in public, and they’re relatively easy to get into. The Court also releases audio recordings of the arguments after their presentation, and often does so on the same day with cases that have massive public interest.
The bill is currently only co-sponsored by other Senate Judiciary Committee Democrats and a lone Republican – President Pro Tempore of the Senate and former Judiciary Committee chairman Grassley.