Yesterday’s Washington Post has an editorial criticizing Justice Kennedy for statements he has made about possible legislation requiring oral arguments to be televised. An excerpt:
JUSTICE ANTHONY M. Kennedy has complained recently that editorial writers seem to mouth off on his opinions without having read them. So we listened to his congressional testimony about cameras in the Supreme Court chamber with particular care to make sure we understood him properly. The court’s resistance to cameras is not news. . . . . But the justice went a big and inappropriate step further, suggesting without quite saying that the separation of powers may forbid Congress from requiring the court to liberalize its policy on cameras.
. . . . Justice Kennedy declared: “We’ve always taken the position in decided cases that it’s not for the court to tell Congress how to conduct its proceedings. . . . And we feel very strongly that we have an intimate knowledge of the dynamics and the needs of the court. And we think that proposals which would mandate — direct — television in our court in every proceeding [are] inconsistent with that deference, that etiquette, that should apply between the branches.” What exactly Justice Kennedy meant by this is opaque; later in the hearing, he responded to a House member’s suggestion that Congress could, in fact, pass such a bill by stressing his use of the word “etiquette.” Still, his words contain more than a whiff of a threat: Pass such a bill, and we may strike it down.
For a sitting justice, speaking on behalf of a court with the power to strike down an act of Congress, to implicitly threaten to do so in an effort to lobby on any legislative matter is, at minimum, exceedingly poor taste. Judges are not supposed to give advisory opinions. But a justice ought to exercise particular caution on matters in which he and his colleagues have such a deep individual interest. No judge should be wielding hypothetical adjudications as a club in what is really a policy dispute.
The odd thing about the editorial is that it seems pretty clear, at least to me, that Justice Kennedy was not making a legal argument. His statement was that requiring arguments to be televised would be “inconsistent with that deference, that etiquette, that should apply between the branches.” That sounds more like a policy argument than a constitutional argument to me. I think it’s also worth noting that such a constitutional argument would seem quite weak. Congress determines how many Justices are on the Court, when the Court is in session, and the order of seniority among the Justices; I can’t think of a reason why Congress can’t also require oral arguments to be videotaped. Given that, I think it’s a better reading of Justice Kennedy’s statement that he was making a policy point, not a constitutional argument.
Matthew Franck has more thoughts on the matter over at Bench Memos.
FWIW, I did read it as a threat although not quite as the editorial lays out. I read it as a suggestion that if the Congress doesn’t show the SCOTUS deference, then perhaps they won’t show COngress deference.
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Even if a valid constitutional argument existed, it isn’t at all clear how anyone could assert standing to litigate it. Such a litigant would have to show an injury in fact, a causal connection between the injury and the presence of the videocameras, and a likelihood that the injury would be redressed with a favorable decision. Taking a huge leap and assuming the first two prongs could be shown, it is more than doubtful that the Court would say its prior decision would likely have been different absent the cameras.
INS v. Chadha is one case that comes to mind in which a litigant was able to establish standing on a separation of powers claim. In that case, however, the act of overturning the House’s veto itself allowed Chadha to stay in the country.
I have to get back to studying for Crim Pro now.
Justice Kennedy said that he would not “countenance” a bill requiring cameras. Here’s an audio excerpt.
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