[Originally posted at Right of Assembly.]
Hollingsworth v. Perry is a bad ruling. It's certainly a shame that the Prop 8 trial will not be fully documented and available to the public. But there are two much deeper stories here. The dead giveaway is a 5-4 split SCOTUS decision over...almost nothing.
On its face, the decision is not about cameras at all -- or so the Court specifically claims. Instead, it's just this tiny issue: how much public comment time a court must allow before it changes its own rules to give itself discretion over how to manage its own proceedings.
And this miniscule issue is raised in the mundane context of whether a particular case is captured on video, even though cases are video taped routinely across the country. The majority opinion doesn't even make much law.
Smell something fishy? Here are the two real stories lurking beneath the surface, and how we can set things right.
Lesson #1: Shining Sunlight on the Judicial Process.
It's not about Proposition 8. The Prop 8 trial is insanely high-profile, argued by two of the most prominent attorneys in the country (David Boies and Ted Olson). The courtroom is open to the public, journalists are present, the case is being reported daily, it's being live-blogged at the Courage Campaign and FireDogLake. There's a complete record that will go up on appeal to the Ninth Circuit. We'll have no shortage of information about this case, although we were entitled to video as well.
The SCOTUS doesn't care so much about webcasting this particular case. Instead, what is at stake is the transparency of the judiciary as a whole.
The majority opinion's fake arguments prove their real agenda. And any time an institution makes a big deal of keeping its proceedings in the dark, you can be sure there is cause for us to be concerned. That's what's at stake.
Here is some factual background that helps reveal the disingenuous nature of the majority (unsigned) opinion:
As Justice Breyer pointed out in his dissent, 42 states and two federal districts (SDNY and EDNY) permit cameras today. Live webcasts of courtroom hearings and trials are routine, both in criminal and civil matters in most states. The leading jurisdiction is Florida, which last year celebrated the 30th anniversary of its rule allowing video coverage of nearly all court proceedings. (Florida's Press Release and Proclamation.)
But Michigan and Massachusetts, for example, both require courts to allow video coverage except in specific, narrowly described circumstances. Tennessee courts cannot preclude cameras without an evidentiary hearing, and the burden of proof is on the party opposing cameras. Nevada and Hawaii courts are very camera-friendly -- heck, Kentucky and Arizona even mount their own cameras on the ceiling to capture judicial proceedings.
As a result, there is no need to speculate about the effect that cameras might have on judicial proceedings. The facts are in. They do not disrupt the courtroom, they do not intimidate witnesses, they do not alter the outcome. They simply improve public access to a public proceeding.
This is hardly a surprising result -- we now spend much of our lives in front of cameras -- on security cameras, at kids' sporting events, at family picnics, or amusement parks -- anywhere another person has a cell phone.
A prominent federal jurist recently wondered why, if the courtroom was completely open to the public, the public was required to be physically present to watch? A federal circuit judge last year went further, writing in a concurring opinion "(T)here is no sound policy reason to prohibit" a webcast of a prominent trial, and the webcast presented "an unprecedented opportunity to increase public access to the judicial system."
Nonetheless, proponents of broad camera prohibitions continue to rely on speculative scare tactics that have been disproved by real life experience in the various state "laboratories of democracy." And if special circumstances warrant media coverage limits in a particular case, no one would deny judges the ability to appropriately limit coverage. For example, cameras might be turned off during the testimony of minors, when a courtroom was sealed, when the government presented classified information, or when witness endangerment was an issue (as in organized crime prosecutions).
In light of these facts, Justice Breyer in dissentwas able to easily demolish the majority opinion's arguments. On the technical legal issues, the impacted parties did not in fact lack "appropriate" notice, and the public did in fact have an "opportunity" to comment on the proposal.
On the procedural issues, there was nothing at stake that would warrant a Supreme Court intervention; in fact, just the opposite, the local court structures were adequate to resolve disputes over local rules promulgation.
On the substantive legal issues, the balance of the equities weighed heavily against a stay, because the irreparable harm would be suffered by the public as a result of diminished access to the proceedings, not by the complaining witnesses, who already had a significant public profile.
More signs of speciousness can be found in the lead opinion's reliance on old citations, from before the rise of the web, to support its claim that courtroom cameras are risky:
This Court has recognized that witness testimony may be chilled if broadcast. See Estes v. Texas, 381 U. S. 532, 547 (1965)...
The more recent cases cited by the Supreme Court mostly approved coverage, so they were cited by the Court to establish the opposite of their actual holding!
So why did the Supreme Court hit the panic button and leap into this fray? Because cameras in general, and increased public access to the political and judicial processes in particular, ARE risky -- risky to opponents of democracy. To reference an ancient historical precedent,
"...the Parliament's regulation of pamphlet printing in the mid-17th century -- because this revolutionary new medium of communication might be used to embolden the masses -- may be analogized to controlling access of the eye and ear of television to public institutions.”
Indeed.
Lesson #2: The Politics of Law
Which brings us to another strange feature of the SCOTUS opinion -- the 5-4 split. I don't mean the fact of an evenly divided court itself. The lower courts are supposed to weed out the easy cases. The Supreme Court hears cases where the lower courts themselves are split, so it is no surprise that the Supreme Court will frequently be divided. That's almost the point.
But the divisions are supposed to break along legal philosophies -- Naturalism, Positivism, Realism, Analytical Jurisprudence, Historicism, Justice as Fairness, and more. There are enough competing legal philosophies, and alternate plausible applications of each of those philosophies, to support a kaleidoscope of shifting alliances -- as historically has often been the case.
But not now. Now it doesn't matter whether the issue is the deference owed to a district court's promulgation and interpretation of its own rules, as in this week's case, or abortion rights, the right to privacy, the Executive's accountability to Congress, a Corporation's accountability to the political process, or the United States' ability to torture non-citizens in foreign lands. In all these cases, four justices consistently side with the rights of the powerful, and four justices attempt to check the exercise of unaccountable power.
There is no legal philosophy that would consistently unite these same groups across such a broad range of issues, only a political philosophy. So what's going on in the judiciary is more politics than law.
Statisticians have proved this phenomenon more thoroughly than I ever could. I wish only to note three things.
First, it is not our imagination. The voting patterns in general, and in particular this week's panicky, embarrassing decision over public access to the judicial process, should be a wake-up call for lovers of Democracy. There is a new front in the battle, with important gates that will have to be crashed.
Second, I do not believe that the "liberal" (actually quite moderate) wing of the Supreme Court is particularly political, or lacking in diverse legal philosophies. Rather, I think it's pretty clear that the cases they are hearing are cases that should not even be before the Court, and these four are united in an attempt to defend the rule of law itself, rather than to defend any particular approach to the law.
Third, public access to the judicial process needs to become a priority for the progressive movement. There is no reason why judges should govern their proceedings in relative secrecy, while the Executive and Legislative branches do their work under the glare of C-SPAN and other media attention. The fix is simple enough. "Sunshine in the Courtroom" bills are introduced every session. Let's push one through.
When we turn on the light, who knows what we'll see. Irresponsible judges who fall asleep on the bench? Corrupt judgeswho imprison Alabama governor Don Siegelman? Corrupt judges who imprison those who challenge their objectivity? Incompetent judges who cannot do their job?
Only one thing is sure: if the judiciary is going to maintain a veil of secrecy around its operations, then the legislature is going to have to lift that veil. And that means WE have to act.
[Originally posted at Right of Assembly.]