“Supreme Court TV”: Televising the Least Accountable Branch?
Bruce G. Peabody*
I. Introduction: The Search for Bipartisanship and the 110th Congress
The midterm elections of 2006 ushered in the return of divided government,[1] with different parties in control of the White House and United States Congress. This electoral shift has renewed talk of Congress’s central role in national policymaking and prompted pundits and politicians to resume calls for bipartisan lawmaking.[2] As President George Bush claimed during a press conference held in November 2006, “it is now our duty to put the elections behind us and work together with the Democrats and independents” to find “common ground.”[3] When the 110th Congress first convened in January 2007, its leaders reiterated this pledge of cooperation between the parties. “Guided by the spirit of bipartisanship,” said new Senate Majority Leader Harry Reid, we “are ready to take this country in a new direction.”[4]
Historically, however, constructing this shared policy agenda has been an elusive and delicate undertaking. And in the immediate future, institutional cooperation may be especially difficult given the electoral competitiveness of the two major parties,[5] and the related likelihood that political control of both the White House and Congress will be genuinely contested during 2008. Moreover, scholarship suggests that party divisions are notably deep in the current era.[6] At least in terms of votes in Congress, the past twenty years have seen legislators adhering to their respective party line ever more tightly; that is, they are much more reluctant than in the past to break from their party’s preferred policy positions—to “cross the aisle” and vote for a measure supported by the opposition.[7] Additionally, a number of commentators have suggested that leaders in the 110th Congress face the enduring difficulty of trying to bring unity to the disparate ideological, geographic, and issue-oriented groups within the two major parties.[8]
II. Televising the Least Accountable Branch?
Given these potentially shearing political forces, what specific issues could bring together partisans and officials who appear to be so opposed? One possibility is that lawmakers might find common ground by training their attention on the Supreme Court—an institution that has, in recent years, been criticized by a wide spectrum of public officials, including representatives from both major parties, as well as Congress and the White House.[9] Since the 1990s, the Court has invalidated (sometimes widely popular) federal legislation at a rate not seen since the advent of the New Deal.[10] The Court’s decisions over this period have frequently inflamed both the left and the right—sometimes at the same time.[11]
Congressional leaders have seemed uncertain about how to deal with this perceived institutional “activism.”[12] Some lawmakers have proposed initiatives to trim the Court’s budget, impeach individual Justices, or employ Congress’s authority under Article III of the Constitution to strip the Court of jurisdiction to hear cases involving certain substantive areas, such as abortion.[13] On the whole, these measures have failed to attract sustained popular attention and legislative support.
The new Congress, however, will consider a bill that could succeed where these other “Court curbing” initiatives have failed. On January 22, 2007, Senator Arlen Specter introduced S. 344, a “bill to permit the televising of Supreme Court proceedings.”[14] Specter’s bill would drag the Supreme Court into the twentieth century, never mind the twenty-first, by requiring television coverage of the Court’s open sessions. The measure includes what might be described as a civil liberties “loophole”—permitting a “majority of [J]ustices” to discontinue the broadcasts in a particular case if they believe that televising these proceedings would “constitute a violation of the due process rights of [one] or more of the parties before the Court.”[15] In all other cases, however, the presumption is that the cameras will roll.
In recent years, scholars, judges, and commentators have surfaced a number of purported benefits and drawbacks to proposals, like Specter’s, that would expand television coverage of federal judicial proceedings.[16] Typically, these debates have focused on policy assessments—on the supposed impact the legislation would have on the operation of our courts or the public’s attitudes towards the judiciary.
Opponents have claimed that bills like S. 344 would compromise the anonymity, and, in turn, the security, of Supreme Court Justices. Moreover, they fear that televising the Court would induce lawyers and Justices to “grandstand”[17] before the cameras, compromising the integrity and solemnity of the proceedings of the highest court in the land. Television coverage of the Court would also sew popular confusion and misunderstanding by reporting on the activities of the high bench without context and “depth.”[18] Supporters of televising the Court have countered that these broadcasts are essential for keeping the public informed about the most powerful tribunal in the world,[19] for keeping the Justices accountable,[20] and for inducing a more robust popular discussion about the issues facing the judiciary—and how the Court attempts to resolve them.[21]
Vetting these issues is important, and they could certainly stand for more systematic exposition.[22] This Article, however, pursues a different analytic tack. The focus of this piece is whether Specter’s legislation, whatever its policy merits, is constitutional—a question that has been largely bypassed in the current debate, and has certainly not generated a thoroughgoing investigation. The remainder of this Article identifies a range of textual provisions, legal arguments, and legislative and judicial precedents relevant to the question of whether the recent proposed legislation, S. 344, is consistent with our supreme law. After briefly sketching the political and legislative context of Specter’s bill, this Article examines specific claims regarding whether Specter’s bill is either compatible with or impinges upon our Constitution’s legal commands and principles. This Article’s analysis of the constitutionality of S. 344 attempts to be thorough, in the sense that it sorts through and evaluates constitutional arguments that might be made on both sides of the debate—both by those convinced of the constitutionality of the measure as well as those deeply skeptical.[23] This Article concludes that there are compelling reasons for believing that S. 344 is indeed constitutional, and consequently, it briefly considers the political prospects of the bill and some of the impact the enacted measure could have on how we think about judicial reform.
III. The Legal and Political Background of “Supreme Court TV”
Televising court proceedings is not an unprecedented or even a particularly new practice, although there is substantial variation in terms of which courts allow what proceedings to be broadcast.[24] Every state judiciary, but not the District of Columbia Courts system, permits some televising of its proceedings, generally in both civil and criminal courts, and at the trial as well as appellate levels.[25]
At the federal level, courts and policymakers have been much more resistant to allowing judicial proceedings to be televised. Rule 53 of the Federal Rules of Criminal Procedure bars both photographing and broadcasting court proceedings in federal criminal trials.[26] More broadly, the Judicial Conference of the United States has issued a policy prohibiting the televising, recording, or broadcasting of the proceedings of both civil and criminal federal trial courts.[27] The Conference has qualified this proscription, permitting courts of appeals to allow television and other forms of coverage.[28] Currently, two circuits have used this authority to televise some of their proceedings.
Since 1955, the Supreme Court has made audio recordings of both oral argument and Justices’ reading of opinion summaries and excerpts from the high bench but, for decades, these recordings were handed over to the National Archives and Records Administration and only made available to the public and press through a somewhat onerous and dilatory process.[29] After the 2000 presidential election controversy, and the attendant interest in Bush v. Gore,[30] the Court became more accommodating to public interest in its proceedings, providing direct access to some of its audio recordings. Currently, the Court decides whether to release its audio tapes of oral arguments and opinions on a case-by-case basis. These materials are available on the same day they are recorded in only a handful of cases, although in October 2006, the Court announced it would subsequently post same-day transcripts of oral arguments on its official website.[31]
Beginning with the 105th Congress (1997–1998), and continuing through every subsequent Congress, federal lawmakers have introduced legislation seeking to induce more televised broadcasting of federal court proceedings.[32] While a number of these measures have simply sought to expand the federal courts’ options related to televising trial and appellate proceedings, other measures, like the current Specter legislation, have required some courts to open their proceedings to live television broadcasts.[33]
To date, Specter’s proposal has assumed only a modest political profile. But the measure possesses a number of qualities that should make it attractive to the current and future Congresses.[34] Prominent leaders of both parties have endorsed the bill.[35] Moreover, the proposed law is the kind of democratic and procedural reform likely to be more broadly popular than measures seeking to alter the Court’s policies or powers directly (such as proposals to restrict what kinds of cases the Court can review).[36] For a federal lawmaker, an initiative requiring the Court to be more accessible and transparent is easier to defend and “sell” to a wide range of constituents than, for example, a measure seeking to alter powers of judicial review that the Court has exercised for over 200 years.[37]
Finally, the recent call to televise some of the Supreme Court’s proceedings may benefit from a leadership change within the Court itself.[38] Chief Justice John Roberts, sworn in as the nation’s seventeenth Chief Justice in 2005, signaled that he would at least consider televising Supreme Court sessions.[39] As Roberts stated, “my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of. But I don’t have a set view on that.”[40] While hardly a strong endorsement of allowing cameras in the Court, Roberts’ seemingly open-minded approach on this issue contrasts with his predecessor, William Rehnquist, and, at least according to some commentators, presages an inevitable change in the Court’s historic reluctance to broadcast its proceedings.[41]
IV. Assessing the Constitutionality of S. 344
The current political environment looks fairly favorable for Specter’s proposal: the bill has supporters across the ideological spectrum and is being introduced in a Congress that appears willing to confront the judiciary.[42] Thus S. 344 may find political daylight in the form of increased debate on and publicity surrounding the measure, if not passage into law.[43] In this context, a question that has been mostly ignored is likely to receive greater scrutiny: Is S. 344 constitutional?
Several sitting Justices of the Supreme Court are not so sure. In the spring of 2006, during a hearing before a House Appropriations Subcommittee, Associate Justice Anthony Kennedy expressed deep reservations about Specter’s bill on the grounds that it was “inconsistent with the deference and etiquette that should apply between the branches.”[44] At the same proceeding, Associate Justice Clarence Thomas stated that Specter’s measure “runs the risk of undermining the manner in which we consider cases.”[45] Compelling the Court to televise its proceedings, Thomas chided, would precipitate “some conflict between the branches.”[46]
But do these rather vague warnings amount to anything? On what grounds, specifically, might one argue that Specter’s bill strays beyond, or is consistent with, the Constitution’s powers and proscriptions? The remainder of this Article attempts to work through these legal queries in a systematic manner, leaving to others the policy questions concerning whether televising Supreme Court sessions is an advisable course of action. As indicated, this Article is partly impelled by a sense that specific analysis of the constitutional issues posed by S. 344 is largely absent from the current debates about televising the court.[47] The question of constitutionality could influence whether S. 344 becomes law,[48] and whether it would survive the almost inevitable legal challenges that would arise once it became a part of the United States Code.
While the ensuing analysis includes a consideration of judicial precedent and legal doctrine relevant to assessing the constitutionality of Specter’s proposal for “Supreme Court TV,” this Article attempts to evaluate constitutional questions from a broader perspective. There is only limited case law directly pertinent to this Article’s inquiry; consequently, the courts provide an incomplete bag of analytic tools for assessing Specter’s bill. In addition, this Article takes seriously the obligations public officials and members of the public have to engage in their own constitutional analysis.[49] These obligations are heightened in this context—where the courts (and especially the Supreme Court) would assess Specter’s bill from a potentially compromised and partial institutional position, as judges involved in their own case.[50] There are good reasons for believing that the struggle over televising the Supreme Court will pit quite different claims from both the legislature and judiciary about the constitutional status and propriety of this initiative. At a minimum, this Article is designed to help sort through these debates.
A. The Separation of Powers Objection
There are several basic arguments that raise doubts about the constitutional status of the proposed television legislation. First, one might object that this bill would threaten the constitutional separation of powers. Justice Kennedy’s 2006 remarks before the House Appropriations Subcommittee hinted at this concern. In speaking about the Specter legislation, Kennedy warned that the Justices “feel very strongly that we have intimate knowledge of the dynamics and the mood of the [C]ourt.” [51] Since the Justices have taken the position that “[i]t’s not for the [C]ourt to tell the Congress how to conduct its proceedings,” Congress should embrace a reciprocal standard and leave the television matter to be determined by the Court.[52] “We feel very strongly,” Justice Kennedy concluded, “that this matter should be left to the courts.”[53] While Kennedy’s comments were somewhat oblique, they struck at least one commentator as introducing a “new” argument about separation of powers into the debate about televising the Court that essentially stood as a warning to the legislature: “Go ahead . . . enact your law, we’re going to strike it down,” presumably on separation of powers grounds.[54]
What are we to make of the suggestion that Specter’s proposal would violate our Constitution’s separation of powers and institutions? One might initially note that it is by no means obvious what our commitment to the separation of powers includes, either as a descriptive or normative matter. No portion of our constitutional text deals explicitly with the separation of powers, and there is considerable debate by scholars,[55] as well as inconsistency amongst jurists, about how we should conceptualize and protect this constitutional commitment.[56] While it is beyond the scope of this Article to present a systematic argument and defense of how we should and actually do construe the separation of powers, [57] the following section focuses on what would seem to be the most likely objections raised against the Specter legislation on separation of powers grounds.
1. Inappropriate blending of powers?
A widely held view is that the separation of powers is premised on dividing institutional power as a means of preventing arbitrary exercises of authority and, in the extreme, tyranny.[58] As James Madison warned in The Federalist, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[59]
However, Madison’s rather restrictive “definition of tyranny”[60] actually occurs in the context of arguing for the necessity of blending and sharing institutional powers.[61] Even the most rigid readings of the Constitution’s separation of powers[62] accede to Madison’s observation that in the U.S. the federal departments “are by no means totally separate and distinct from each other.”[63] Presidents are famously involved in lawmaking through their power to propose legislation and issue vetoes. Similarly, our constitutional text invites Congress to become rather intimately involved in the work of the judiciary. To take one of the more obvious examples, Article III grants Congress a seemingly sweeping constitutional power to make “exceptions” and “regulations” to the Court’s appellate jurisdiction.[64] Moreover, a number of federal statutes provide Congress with control over a substantial portion of the Court’s business. Congress, for example, determines the presence of clerks and the role of the Court’s marshal, fixes the Court’s budget, sets the level of the Justices’ salaries, and delineates the particular penalties for those who “parade” in the Supreme Court building or on its grounds.[65] Thus, this particular version of the separation of powers objection to S. 344 seems to be somewhat anomalous—it is based on a more rigid model of political institutions and their governing authority than the one we actually possess.
2. Intimidation and threatened independence?
a. Legislative encroachment
Alternatively, perhaps Specter’s legislation poses a separation of powers threat that involves compromising the judiciary’s independence.[66] This purported danger might assume several forms. To begin, threats to judicial independence could manifest specifically as legislative intimidation and encroachment; the passage of S. 344 could sanction and invite a more general manipulation of the Court and its proceedings by Congress.
In the context of the numerous and uncontroversial congressional regulations discussed above (involving, for example, the creation and direction of the Court’s budget, facilities, personnel, and internal procedures), requiring the Court to televise conversations and debates that it already makes available to the public would hardly seem like a greater threat to its capacity for independent judgment, or a dramatic departure from what presidential scholar Richard Neustadt famously called “separated institutions sharing powers.”[67] Absent some other dynamics or threats, it is not entirely obvious how “Supreme Court TV,” would compromise the Court’s autonomy, more than, for example, the practice of asking the Justices to appear before Congress to justify their annual budget. Indeed, televising the Court seems to be a regulation of the same order as the numerous other controls that the legislature already employs.
One might make the claim that these other regulations, unlike “Supreme Court TV,” advance or facilitate the unique work of the Court and thereby promote rather than threaten its independence as well as its powers under Article III of the Constitution. Even setting aside the question of whether televising the Court might actually promote its authority, we might note that some of the accepted congressional regulations already in place cannot be readily characterized as solely facilitating the judiciary’s work and independence. To return to an example, observers have not always perceived Congress’s control of the Court’s budget as strictly enhancing judicial authority. Indeed, Chief Justice John Roberts recently lamented that Congress’s decision not to increase the salaries of federal judges was threatening judicial independence and “has now reached the level of a constitutional crisis.”[68]
b. General political encroachment
There is a second way in which one might conceivably argue that Specter’s legislation poses an unconstitutional threat to judicial independence. The introduction of “Supreme Court TV” could arguably impede the Court’s autonomy, by inviting in, and making the Court more conscious of, various political interests that would now be more responsive to the high bench’s day-to-day proceedings. In other words, televising the Supreme Court could place the institution more squarely in the crosshairs of public opinion and organized interest-group politics.
Even if the Court assumed a substantially heightened political profile as a result of television coverage, would this development really intimidate Justices (and the lawyers appearing before them) and somehow diminish their ability to speak freely or otherwise act independently? While some Justices are, for whatever reasons, reluctant to speak during oral argument, and appear less comfortable with publicity than others, it is not evident that this dynamic would change dramatically in the face of “Supreme Court TV.” The current Court is actively covered by the press, is the object of impassioned public protests outside its building, and receives a variety of entreaties through the amicus process and through less formal means.[69] The Court’s personnel are surely not unaware of their importance and would not be surprised to learn that their arguments and decisions are closely followed.[70]
In addition, objecting to greater public exposure to the Court through televised proceedings seems to be anti-democratic—without giving support to any obvious countervailing value. Interest-groups and elites currently have some access to the Court’s public proceedings and to individual Justices. Legislation like S. 344 would make exposure to the Court more universally available, arguably diminishing the role and influence of the relatively limited group that now regularly observes and comments upon the Court’s proceedings.[71]
Moreover, even some skeptics of televising the Supreme Court have dismissed the “political encroachment” argument by drawing, in part, on the experiences of the state and federal courts, and noting the continued independence of these entities even in the face of greater media coverage.[72] Finally, one might contend that whatever potential intimidation the Court could possibly face through S. 344 is necessarily limited as Specter’s bill only televises those proceedings the Court has already chosen to open to the public.[73] Internal hearings, debates, and decisions would remain closed—covering the eyes of the public with a restrictive blinder of the Justices’ own making.[74]
3. Compromising distinctive judicial functions?
A variant of these constitutional objections might be based on the assertion that mandating television coverage of the Court would compromise or undermine distinctive judicial functions, perspectives, or powers specified or implied in Article III or other portions of the Constitution. Some scholars and jurists have suggested that besides preventing the tyranny of institutions accumulating too much power or encroaching upon one another, our separation of powers system promotes “positive” traits and features, such as the energy, unity, and secrecy associated with the presidency,[75] and the final judgment and stability sometimes linked to courts.[76] To the extent we accept and value these potential contributions of our separated powers, we ought to take seriously the charge that televising the Court could somehow compromise the unique institutional benefits it confers on our legal and political order. Some critics of the television proposal have made arguments that hint at this objection. As federal district court Judge Jan DuBois commented in hearings before Congress, “the camera is likely to do more than report the proceeding—it is likely to influence the substance of the proceeding.”[77]
Many of the objections that have been made along these lines, however, focus on the supposedly disruptive effects of cameras in the context of trial proceedings.[78] For example, when the Judicial Conference rejected recommendations that it allow television cameras throughout the federal courts, it cited concerns about how this coverage might intimidate the parties to a case, along with witnesses and jurors.[79]
The Supreme Court is essentially an appellate court,[80] so many of these concerns about trial coverage would simply not apply. However, we might still worry that live cameras in the Court would change the behavior of the Justices and the lawyers appearing before them in such a way that their inclusion might unconstitutionally diminish the Court’s contribution to both our system of laws and politics—impeding, for example, the Court’s ability to resolve cases and controversies.[81] This argument seems fairly unconvincing. As noted, the lawyers and Justices who engage in the Court’s open proceedings are already aware that they are under sustained and exacting scrutiny by a national audience.[82] It is unclear why the presence of live television cameras would change this dynamic substantially.[83] Moreover, even if the Justices and the attorneys appearing before them did somehow “play to the cameras” or otherwise change their debate and behavior style, it is difficult to conceive how this would amount to an unconstitutional undermining of the Court’s specific institutional roles or its contribution to protecting values such as legal stability. Regardless of participants’ performance before the cameras, the Court would still be issuing decisions, declaring winners and losers, and helping to establish policy for the judicial system of the United States.
B. The Enumerated Powers Objection
Setting aside the various separation of powers objections still leaves us with another broad challenge to Specter’s proposed law. A basic, albeit inconsistently applied, tenet of American constitutionalism is that every federal law is supposed to be traceable to some specific or implied constitutional grant.[84] In the words of the Supreme Court, Congress may only legislate or otherwise act when “authorized by one of the powers delegated . . . in . . . the Constitution.”[85] So what exactly, is the constitutional basis for mandating “Supreme Court TV?”
1. The power of the purse
Various provisions in Article I of the United States Constitution have been construed—by the courts as well as the legislature itself—as establishing the power of Congress to exercise wide discretion in how it raises and spends funds, so long as these expenditures are pursuant to valid, constitutional objects.[86] Congressional practices and precedent have largely created the particulars of authorization and appropriations, since the Constitution says nothing about these processes and is short on budgeting details generally.[87]
If one assumes that Congress’s general power to authorize and appropriate funds for operating the Supreme Court is not controversial, could the legislature also use its budgeting powers to impose conditions on how the Court operates? In other words, so long as Congress did not interfere with Article III, which guarantees the Justices “a [c]ompensation, which shall not be diminished during their [c]ontinuance in [o]ffice,”[88] could the legislature use its control over the Court’s funding as a coercive tool to induce the Court to agree to “Supreme Court TV”?[89]
The Court’s prior jurisprudence seems to suggest that the answer to this question would depend upon whether the Specter legislation is otherwise constitutional. In South Dakota v. Dole, the Court held that Congress has wide leeway to use its spending powers to attach conditions to entities receiving funding, so long as these controls satisfy a four-part test.[90] According to the Court, conditional exercises of the spending power must be 1) for the “general welfare” of the United States, 2) unambiguous, providing a clear choice about the consequences of accepting the funding, 3) germane to the overall purposes of the funding, and 4) consistent with the Constitution.[91]
In light of Dole (and the Constitution’s Supremacy Clause), we can safely conclude that Congress could not require the Court to televise its proceedings through its budget powers unless the Constitution otherwise permitted it to do so. Seeking to compel the Supreme Court to televise its proceedings through the power of the purse would, as suggested, also raise questions about whether this approach violated the guarantees of Article III, which precludes diminishing the “compensation” of judges while they are in office.[92]
2. Art. I, Section 8
In addition to authorizing aspects of the congressional spending power, Article I, section 8 includes a list of other sources of legislative power. Is there anything here that authorizes Congress to put cameras in the courtroom? While these constitutional provisions say very little about Congress’s powers vis-a-vis the Supreme Court, two items on this laundry list of powers are pertinent to this discussion.
a. Authority over the District
Among other powers delegated to Congress, Article I states that the legislature shall:
exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.[93]
Despite its somewhat sweeping language, this provision does not grant Congress a general authority to provide legislative regulation of anything in the District. Such a reading would give the legislature a rather blanket power over the Court and much of the executive branch—in a way that is in obvious tension with other aspects of the Constitution.
However, Congress has employed this constitutional provision to regulate and protect federal property in the District of Columbia, passing laws that provide for the maintenance, care, operation, and security of the Supreme Court building and its grounds.[94] Could proposals to televise the Supreme Court be constitutionally justified on this basis—claiming that televising the Court was incident to Congress’s authority over the District and its grounds and buildings?
Congress is empowered to pass legislation related to the District and its governance, and to regulate other federal buildings and places within the District. But, presumably, Congress’s authority over the non-District federal property limits it to governing the property per se, rather than using these controls as a more general regulatory power. Specter’s legislation does not, for example, seek to install cameras on the Court grounds generally as a means of promoting security. Instead, it appears to regulate more directly the judicial power itself. Understood in this way, the connection between the legislature’s constitutional grant over the District and its property, and the manner in which S. 344 requires television cameras in the Court, is arguably too remote to serve as the legal basis for the proposed law.
b. The Necessary and Proper Clause
Article I, section 8 concludes with the so-called “elastic clause,” which gives Congress authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution” powers given to the federal government.[95] Does the “necessary and proper” clause provide Congress with the legal power to mandate televising the Supreme Court? Could one insist, for example, that televising Supreme Court proceedings is “necessary and proper” to furthering the “judicial power,” which Article III vests in the Court?
The Court’s own jurisprudence certainly gives proponents of “Supreme Court TV” a basis for pursuing this claim. The Court has given Congress considerable leeway to enact legislation pursuant to the “necessary and proper” clause, merely requiring a “rational nexus” between “the content of a specific power in Congress and the action of Congress in carrying that power into execution.”[96] In the famous (if somewhat elliptical) words of McCulloch v. Maryland, so long as the legislative end is “legitimate” and “within the scope of the Constitution . . . [then] all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”[97]
More specifically, the Court has sanctioned, and Congress has energetically utilized, a broad legal authority to fashion rules governing the operations of the federal courts. As the Court indicated in Wiley v. Coastal Corp.:
[f]rom almost the founding days of this country, it has been firmly established that Congress, acting pursuant to its authority to make all laws “necessary and proper” to [the] establishment [of federal courts], also may enact laws regulating the conduct of those courts and the means by which their judgments are enforced.[98]
(1) Legislative enhancements
What, precisely, does this power entail with respect to Congress’s supervision of the Supreme Court? There are several ways of understanding the necessary and proper clause—and consequently, its purposes and limits—in the context of this Article. First, the clause could be viewed as permitting federal legislation if it somehow “enhances” valid powers of national government.[99] This reading of the clause would presumably justify Specter’s bill if it promoted, for example, the operations and effectiveness of the Court, by furthering the administration of justice and the Court’s responsibilities as outlined in Article III. A classic example of this sort of “necessary and proper” legislation would be the Act that created the Federal Judicial Center in 1967 “to promote improvements in judicial administration in the courts of the United States.”[100]
Justifying S. 344 on the grounds that it is a “necessary” enhancement or extension of the Court’s powers is not obvious at first glance.[101] While there is some research suggesting that televising federal and state court proceedings has beneficial effects in terms of conferring legitimacy on the judiciary, the necessity of the technology is certainly debatable.[102] Could providing more coverage of the Court through the medium of television deepen the public’s understanding and knowledge of the high bench, in a way that makes it operate more effectively? Could “Supreme Court TV” increase the accountability of the Court, thereby enhancing its connection to the people and, in turn, its capacity to carry out its duties?[103] While it is conceivable that both questions could be answered in the affirmative, these are still somewhat questionable bases for constitutionally grounding Specter’s television proposal. It is possible that televising the Court could have no effect, or even a negative effect, upon the Court’s legitimacy and effectiveness. Certainly, as already indicated, a number of judges and Justices are themselves skeptical about the positive correlation between televised proceedings and the Court’s ability to conduct its business. Presumably their views carry considerable weight in trying to establish whether television would be necessary for enhancing the Court’s work. More broadly, arguing that S. 344 is strictly necessary for advancing the Court’s functions and operations appears to push the limits of how we normally understand “necessity.” After all, the Supreme Court’s ability to function does not seem to have been obviously compromised by its absence from the nation’s television screens over the past seventy-five years.
On the other hand, if we adopt a less rigid conception of congressional authority under the necessary and proper clause, three alternate arguments provide a basis for claiming that S. 344 does indeed constitutionally advance or enhance the judicial power of the Supreme Court, and is therefore a defensible exercise of Congress’s powers under Article I, section 8. First, we might note that the Court itself promotes a kind of heuristic function in opening its oral arguments to the public, and in choosing to read summaries and sometimes excerpts from its opinions (including dissents). If one presumes that these initiatives are defensible exercises of the judicial power, it seems entirely plausible that the proposed television bill would enhance their educational value by potentially reaching millions of viewers rather than the small group that currently attends the Court in person. Second, a proposal requiring the Supreme Court to televise its proceedings might facilitate the Court’s distinctive institutional role, especially its capacity to contribute to legal and political stability and unity.*FN1 To the extent the Court can promote this legal “settlement” by communicating with the general public, televised proceedings will surely advance this function. Third, as discussed in the following section, Congress seems to possess implicit rulemaking powers over federal government; this authority may empower Congress to pass specific regulations that do not themselves advance the judicial power, but occur in an area of institutional operations in which it is critical to have some rule established for judicial operations. Thus, while we know that it is not strictly “necessary and proper” for the Court to have a membership of nine (it has operated with fewer and more Justices), it seems plausible to argue that it must have some fixed membership level to perform. The television legislation, then, may be understood as advancing the judicial power by providing specific regulation within a broad area—access to the Court—that is genuinely “necessary” for its functioning.
Alternatively, we might argue that S. 344 is necessary and proper for enhancing federal powers and functions found in another branch or, more generally, “in the government of the United States.”*FN2 For example, even if one concludes that “Supreme Court TV” has no effect upon the ability of the Court to fulfill its functions, it might still be defended as promoting Congress’s oversight powers or in keeping the public informed about their leaders and institutions.*FN3 Given the bill’s focus on proceedings that the Court has itself chosen to make public, this argument is not entirely straightforward. While we will look at this question in greater detail below, the Specter bill appears to be so closely tethered to existing judicial operations that it may be difficult to justify —it solely on the grounds that it advances some non-judicial power or prerogative found in the Constitution.[104]
(2) Legislative rulemaking
As intimated, we can also frame the question of whether the legislature retains the “necessary and proper” authority to force cameras into the Supreme Court in a quite different manner. Adopting a “legislative rulemaking” approach to the necessary and proper clause allows us to move beyond understanding the provision as strictly limited to enhancing the powers of the various institutions and entities of national government. We might ask instead, whether Congress can use its necessary and proper power to fill in the details governing aspects of the judicial power, including even the judiciary’s ability to govern itself.
As already suggested, Congress has certainly provided this regulation in other contexts. For almost one hundred years, for example, Congress has handed the Court its calendar, compelling it, under the United States Code, to open every new term on the first Monday in October.[105] No one would pretend that it is necessary and proper for the Supreme Court to start its business on this particular date—almost any starting time would do.[106] However, it is arguably essential that the Court’s term have some beginning, so that those seeking rulings from the Court know how to prepare their case, and have a sense of when they might anticipate a ruling.
In this, as well as in other aspects of public life, we have a long tradition of allowing Congress, as the federal government’s chief policymaking body, to set out particular rules in order to make the work of our national institutions possible. In addition to stipulating precisely when the Court’s term begins, for example, the United States Code establishes how many Justices sit on the Court and what constitutes a Court quorum for conducting business.[107]
Presumably, Congress’s power to pass these regulations does not flow directly from its own legislative responsibilities and functions. Instead, Congress enacts these measures as a function of its constitutional authority to enact laws that are “necessary and proper” for advancing some of the “powers vested by this Constitution [more generally] in the government of the United States” and specifically, the judiciary.[108]
Evaluated against this background of Congress’s rather extensive history of “filling in” the details of judicial power, the constitutional grounding of S. 344 looks fairly secure.[109] The Specter television legislation would provide specific guidelines for exercising an implicit Article III power that, on its own, has been free of controversy—the Court’s authority to open some of its proceedings to the public, a practice that the Court now follows in permitting private citizens to hear and view oral argument and other aspects of its proceedings.[110]
One might still argue that, unlike other aspects of the judiciary regulated by Congress, the power that the Specter legislation aims to govern is not somehow “obligatory.” In other words, we might conclude that the Constitution allows for legislative rulemaking under the “necessary and proper” clause, but only in areas that are strictly “necessary” for the Court’s operation. The Court must have some number of Justices, needs to have a quorum to operate, and depends upon a budget of some size to facilitate its work. Existing legislation, such as the Judiciary Act of 1789,[111] fills in the details of essential aspects of the Court’s business, supporting vital elements of its basic operations. But S. 344, in this view, is not of such a character. Determining whether to televise the Court’s proceedings is not the kind of foundational question that must be decided as a prerequisite for enabling the Court to fulfill its core responsibilities.
But this demanding standard would call into question much of the legislation, and with it many of the practices, that the Court has long depended upon, and the nation has come to accept. To name just a few examples, if the necessary and proper clause were construed as only allowing congressional regulations of measures that must be enacted for the Court to perform, the presence of law clerks, the Public Information Office, and the Federal Judicial Center would all be brought into serious question.[112] Such a reading seems needlessly restrictive.
(3) Procedural vs. substantive regulations
We might add an additional layer to this analysis of the necessary and proper clause and its relevance to assessing the constitutionality of S. 344. Some court decisions have attempted to distinguish procedural regulations of the judiciary made in the name of the necessary and proper clause (permissible) from substantive regulations (impermissible). For example, in Burlington Northern R. Co. v. Woods, the Court ruled that “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.”[113]
While this distinction is difficult to delineate, it is not meaningless. A proposal that sought to bar the Court from reviewing cases related solely to abortion on the grounds that these decisions damaged the Court’s legitimacy and effectiveness[114] would seem to aim at a rather specific substantive goal rather than enacting a neutral, procedural rule for the Court to follow; this sort of proposal targets what the Court decides rather than seeking to govern the manner or environment in which it makes its decisions.
Setting aside the question of whether this emphasis on procedure over substance is a sensible construction of the “necessary and proper” clause, should we regard the Specter legislation as largely procedural or substantive?[115] On its face, the bill seems to be the former—seeking not to shape or direct the Court to particular outcomes but controlling the medium through which the Court publicizes its work.
(4) Fed. R. Crim. P. 53
Of existing regulations and laws, the one most pertinent to this discussion and analysis of S. 344 is Rule 53 of the Federal Rules of Criminal Procedure.[116] The United States Supreme Court, pursuant to federal law, promulgates and changes the Federal Rules, subject to Congress’s approval and amendment.[117] Rule 53 bars both photographing and broadcasting court proceedings in federal criminal trials.[118] Assuming this rule is a valid exercise of congressional power, partly delegated to the Supreme Court,[119] does the rule either cast doubt upon or enhance the constitutional case for S. 344? As indicated, Congress created the Court’s authority to fashion federal rules, and that authority is subject to congressional specification and correction. Passing S. 344 would effectively amend Rule 53 with respect to the Court; the old federal Rule would not have trumping power over the newly enacted federal law. Therefore, Rule 53 does not pose an obstacle to Specter’s initiative.
Does the Rule somehow authorize the television bill? In other words, can we argue that Congress’s delegated power to enact Rule 53—barring television from the federal criminal courts—implies the inverse authority to enact “Supreme Court TV?” In a sense, the question largely reprises the prior “necessary and proper” analysis and is, therefore, of secondary importance to that discussion. If one construes exercises of the “elastic clause” narrowly,[120] as allowing only enhancements of judicial power or operations that directly further the work of the courts, then one might conclude, especially given the federal judiciary’s own resistance to televised proceedings, that the constitutional authority behind Rule 53 goes only “one way,”[121] allowing for the exclusion of cameras but not authorizing their presence. Alternatively, as argued previously, there are grounds for believing that televised proceedings could advance the judicial power, and the history of congressional regulations of the courts suggests that Congress has a general authority to enact laws that fill in the details within fairly broad areas of governance. While, on its own, Rule 53 does not establish the constitutional propriety of “Supreme Court TV,” it certainly does not damage the case.(5) Summary
We might summarize the foregoing analysis of the necessary and proper clause by concluding that the Specter legislation has a secure constitutional foundation through this textual provision. Specifically, the bill arguably advances the Court’s judicial power directly in several ways (by, for example, supporting its settlement function and by making the proceedings it has chosen to reveal to the public more widely available). Moreover, S. 344 represents a valid exercise of Congress’s authority to enact rules that fill in the details of how the public gains access to and information about the Court—in a manner that does not erode the Court’s independence, particularly not relative to other broadly accepted regulations.[122] Finally, we have good reasons for thinking that the Specter legislation would validly advance non-judicial powers and general governmental interests—especially the authority of Congress and the general public to monitor the work of the judiciary.
3. Article III congressional controls
Article III specifies a finite number of cases in which the Supreme Court has original jurisdiction and states that in “all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”[123] The Specter legislation under consideration does not limit itself to promoting coverage of cases considered under the Court’s appellate authority; it televises all “open sessions” of the Court, although in practice these sessions would overwhelmingly involve appellate matters. Could this seemingly broad grant of power under Article III provide a basis for a variant of the Specter bill, perhaps a measure that sought to televise sessions of the Court involving the cases it reviews through its appellate jurisdiction?
The question is complex and beyond the scope of this study, which is focused on the language and constitutional basis for Specter’s original bill, S. 344. The Article III power has been used as the basis for a range of legislation, including bills that set the dollar threshold for diversity jurisdiction in civil matters[124] and, more controversially, laws that have “stripped” the Court of authority to hear particular classes of cases.[125] Legislation seeking to use Article III as the basis for controlling the means through which the Court publicizes its actions would seem to be of a different class than these historical exercises of the power, but, again, the issue would require more thorough and systematic analysis.
4. The First Amendment and rights of access
[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[134]
The Court has ruled that these protections apply equally to the federal government through the Fifth Amendment.[135] Section 5 of the Fourteenth Amendment empowers Congress to “enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment. Could one convincingly argue that Section 5 authorizes Congress to pass S. 344, on the grounds that this bill would help the legislature protect and enforce the liberties guaranteed by the Fourteenth Amendment?[136]
This is a difficult case to make. What particular constitutional rights does S. 344 enforce? As the previous analysis makes clear, while televising the Court does not seem obviously barred by the Constitution, there also does not seem to be an obvious constitutional basis for insisting that this coverage is required by our supreme law. As discussed, there is a well-recognized constitutional right of access for the public and press to many criminal proceedings.[137] But courts have not extended this right, in any context, to include legally guaranteed access for television cameras.[138]
Any effort to defend Specter’s bill as an “enforcement” of the Fourteenth Amendment, would also have to contend with a recent line of Supreme Court cases that have tamped down on Congress’s capacity to legislate pursuant to Section 5. City of Boerne v. Flores,[139] for example, held that Section 5 should be viewed as a “remedial” power that could only be invoked after Congress satisfied two conditions.[140] First, Congress had to make a case that the intended legislation addressed genuine abridgements of the Fourteenth Amendment, and, second, Congress was required to demonstrate that its chosen legislative means for rectifying these violations were closely related to this end.[141] In the words of the Court, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect [straying beyond the Fourteenth Amendment].”[142]
In light of Boerne and other rulings,[143] advocates of the Specter bill would likely face a dubious reception from courts in trying to make the case that the legislation was an appropriate enforcement of the Fourteenth Amendment. Proponents of S. 344 would need to demonstrate a sufficient record of specific Fourteenth Amendment violations to establish that the Specter measure is an appropriately tailored legal remedy. Given the uncertain connection between televising judicial hearings and protecting individual liberties, this would, presumably, be an uphill struggle.[144]
C. Other Constitutional Arguments
1. The Fifth Amendment and due process
Could Senator Specter’s bill, in requiring the televising of Supreme Court sessions, jeopardize the Fifth Amendment’s guarantee that no person “shall be compelled in any criminal case to . . . be deprived of life, liberty, or property, without due process of law?” The immediate answer is no, because S. 344 contains a provision that allows a majority of the Justices to stop the television cameras if the cameras “would violate the due process rights of one or more of the parties” before the Court.[145] But if this provision was not invoked by the Justices,[146] or if it were stripped from the final version of Specter’s bill, would “Supreme Court TV” otherwise be in jeopardy on “due process grounds?”
Although the Court, more than forty years ago in Estes v. Texas,[147] reversed a criminal conviction partly due to concerns that television coverage of the case was prejudicial, the judiciary has generally not subsequently found that the presence of cameras in courts undermines fair procedure.[148] Indeed, Estes itself suggested that the disruption posed by cameras in that case might well disappear in the future:
the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause.[149]
Thus, even setting aside the explicit “due process” provision of S. 344, the bill does not inherently pose a Fifth Amendment problem. While it is conceivable that the presence of television cameras could threaten the rights of an individual in a specific case, a reviewing court could simply invalidate the result in that particular dispute.[150]
2. Sixth Amendment guarantees
The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”[151] Could this guarantee be somehow compromised by the proposed television legislation?[152]
Since S. 344 is limited to televising the Supreme Court of the United States, this concern could only take one of two forms. First, one might claim that the Court’s limited exercise of original jurisdiction sometimes amounts to a criminal trial. In practice, the only category of cases under the Court’s original jurisdiction in which this is likely to occur is in criminal “cases affecting ambassadors, other public ministers and consuls.”[153] However, given both the infrequency with which the Court reviews original jurisdiction claims involving ambassadors and the criminal immunity that attaches to most diplomatic offices and acts,[154] it is unlikely that a defendant could successfully raise such a challenge (even if one could make the case that the Court’s review of these cases equated with a trial as delineated in the Sixth Amendment).
As a second argument against S. 344, one might contend that even if the Supreme Court does not ever serve as a criminal trial court, the Specter proposal might indirectly impinge upon the Sixth Amendment during the appellate process. That is, if the presence of television cameras in the Court effectively damages or hampers a party’s right to appeal, this coverage might indirectly threaten their right to enjoy a fair trial.
But this, too, is a strained and unconvincing argument. The federal right to appeal has been created by statute.[155] There is no constitutionally based right to appeal and no right to appeal to the Supreme Court.[156] Whatever the “right to trial” includes, therefore, it would not obviously be hindered by any supposed defects caused by the televising of Court proceedings.
3. Unconstitutional Legislative Motives or Purposes?
Some might dismiss these various claims regarding the constitutionality of the recent television legislation as being beside the point. What’s really at stake in this debate is protecting the Court from an ill-tempered and partisan Congress, intent on harassing the judiciary, and even clipping its wings. In this view, the motivation behind Specter’s bill is not to provide greater accountability or to educate the public, but to enact a form of punitive revenge for the Court’s nullification of various federal laws.[157]
On one level, it’s hard to see how this objection amounts to a damning constitutional argument against the proposed television legislation. With good reason, courts have been reluctant to look at congressional motives for enacting legislation.[158] As it announced in United States v. O’Brien, the Supreme Court does “not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”[159] Making its constitutional judgments turn on the purity of “legislative motives” would compel the Court to provide authoritative pronouncements on the obscure psychology and incentives of legislators, in large part by attaching a great deal of significance to what is often a spotty and even inscrutable legislative record.[160]
However, this response is incomplete. While it is a dubious, if not impossible, enterprise to assess accurately the incentives and motives of individual lawmakers, not to mention an entire Congress,[161] trying to capture the legislative purposes behind a bill is a more manageable, although still difficult, task. It is relatively commonplace for courts to inspect legislative purposes while, for example, attempting to discern whether a particular legislative classification meets a “rational basis” or “rational standard” test.[162] In general, if courts fail to find a valid public purpose behind a piece of legislation, then it tends to be struck down.
Thus, investigating the legislative purposes behind S. 344 might be relevant to ascertaining its constitutionality in at least three ways. First, if the purposes of the bill are somehow themselves unconstitutional, a case could be made that the bill itself is also invalid. For example, if the reasons cited by legislators for supporting S. 344 centered on curbing the “judicial power,” or if proponents offered no rationale whatsoever, the bill would be constitutionally suspect.[163]
Second, plumbing legislative purposes could be central if one accepts a reading of the necessary and proper clause that assesses the validity of congressional regulations of the judiciary by determining whether they are primarily “procedural” rather than “substantive.”[164] If one adopts this approach, then, presumably, we might designate S. 344 as an unconstitutional, substantive interference with the Court (if, for example, most lawmakers intended that the initiative would impact the content of the Court’s decisions in some way).
Third, examining congressional discussions about the rationale for the television bill might support or erode other arguments about how the measure serves as a constitutional application of the necessary and proper clause. Presumably, for example, if there is no record of Congress evincing interest in promoting Court operations, an argument that S. 344 advances the “judicial power” of the Court is somewhat harder to establish.
How can we evaluate the Specter legislation in light of these arguments about legislative purposes? Given the conciseness of the bill and the absence of a developed legislative record on the measure, it is hard to argue decisively about its intended objectives. A thorough analysis of the legislative purposes behind S. 344 could only take place in the future, after Congress has fully considered and debated the bill.
Nevertheless, we might make a few initial comments about the presumed rationale behind the television legislation, and how this relates to our assessments about its constitutionality. Senator Specter himself has declared that:
[t]he purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. Because the Supreme Court of the United States holds power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual “super legislature,” the public has a right to know what the Supreme Court is doing. And that right would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of the Court's decisions.[165]
Specter has also expressed support for his recent television legislation and similar measures on the grounds that these initiatives represent reasonable responses to the Supreme Court’s activism and invalidation of federal law. A law requiring televised Court proceedings might place some “legitimate pressure” on the high bench.[166]
If one assumes that the reasons Specter advances for supporting his bill are not idiosyncratic and will reflect the public declarations of other legislators,[167] what can we infer from his remarks? Much of Specter’s argument for televising the Supreme Court focuses on two principal goals: first, educating the public by making information about the Court’s personnel and work more available, and second, providing the public with a vital instrument for scrutinizing the Justices and ensuring their accountability. Some of Specter’s language also intimates that Congress should pass the bill to punish or pressure the Court, so that its decisions will fall in line with the wishes of national majorities.
Are any of these reasons for supporting S. 344 so constitutionally suspect as to render the entire bill invalid?[168] The arguments Specter offers certainly are “rational”—meeting the minimal standards the Court has imposed in scrutinizing legislative purposes. While it would seem difficult to impugn the first two legislative motives as rendering the measure unconstitutional, a case might be made that the last argument possesses a more dubious character.
But this rationale represents only one strand of Specter’s public justification for the bill; one he does not emphasize relative to the other stated purposes. Moreover, the proper basis for determining whether Specter’s “pressure” remarks implicate the bill’s constitutionality would seem to be a direct separation of powers analysis, and not an indirect inspection of whether the bill’s purposes violated this doctrine. In other words, if, as argued previously, the bill itself doesn’t violate the separation of powers, it is difficult to imagine that it might still be deemed unconstitutional because its supporters somehow intended to encroach upon the Court.
What about the second legislative purposes challenge previously delineated? Could a close inspection of the legislature’s justification for the television legislation reveal that this is a largely “substantive” rather than “procedural” regulation, and is therefore constitutionally void under one of the tests used by courts in applying the “necessary and proper” clause? Again, a complete evaluation of this argument would require a full accounting of the legislative debates on S. 344, a record that is not yet available. If the congressional deliberations established that the primary goal moving the bill’s supporters was their interest in shaping the Court’s opinions,[169] we would possess some basis for stamping the bill as intending a substantive outcome, rather than providing procedural rules “necessary” for enabling the Court to function. Presumably an even more pertinent analysis would entail addressing whether Congress actually impeded the Court’s Article III powers.
In any event, lawmakers’ reasons for supporting the bill are certain to be complex and multiple.[170] Moreover, even if one could establish that the purposes of the bill were somehow distinctively “substantive,” this contention would run up against the language and nature of S. 344 itself, a bill which seeks to alter how the Court presents its public face. The proposed law largely expands the means through which the Court performs a portion of its basic operations. This character of S. 344 appears to mark it as a procedural measure on its face, no matter the underlying purposes of its author and supporters.
D. Summary
Even if S. 344 becomes a public law, it is likely to be challenged in the courts on co