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News Room
Arlen Specter Speaks
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Arlen Specter Speaks on the Floor Urging the Supreme Court
Washington, D.C.
Thursday, November 5, 2009 -
Mr. President, I have sought recognition to introduce a sense-of-the-Senate resolution urging the Supreme Court to permit television coverage of its open proceedings.
I have previously introduced legislation on the subject. In the 109th Congress, I introduced S.1768, on behalf of myself and Senators Allen, Cornyn, Durbin, Feingold, Grassley, Leahy, and Schumer. It would have required the Court to permit television coverage of its proceedings. On March 30, 2006, the Committee on the Judiciary favorably reported S. 1768 by a vote of 12 to 6. In the 110th Congress, I introduced an identical bill, S. 344, on behalf of myself and Senators Cornyn, Durbin, Feingold, Grassley and Schumer. On September 8, 2008, the Committee favorably reported the bill by a vote of 11 to 8. Early in this Congress I again introduced an identical bill, S. 446, this time on behalf of myself and Senators Cornyn, Durbin, Feingold, Grassley, Kaufman, Klobuchar, and Schumer.
The resolution takes a more restrained and modest approach than does S. 446 and its predecessors. It would do no more than “urge” the Court to allow the television coverage of its open proceedings (unless Court decides that television coverage would violate a litigant’s due-process rights, which is unlikely).
I urge the Senate to pass this non-binding resolution rather than taking action on S. 446 at this time. My reason is not that S. 446 may be unconstitutional. It is not. Congress’ well-founded authority to regulate various aspects of the Court’s activities—to fix the number of Justices who sit on the Court (nine) and constitute a quorum (six), to set the beginning of the Court’s term as the first Monday in October, and to establish the contours of its appellate jurisdiction—would sustain S. 446 against a constitutional challenge. Rather, I have four prudential reasons for proceeding with a non-binding resolution at this time:
First, the Court’s most outspoken critic of television coverage, Justice Souter, has retired. Justice Souter once said that the “day you see a camera come into our courtroom, it’s going to roll over my dead body.” Several Justices have indicated their reluctance to permit television coverage in the face of opposition by a colleague. Justice Souter’s departure may lead his colleagues to revisit the issue. His replacement, Justice Sotomayor, testified during her confirmation hearings that she had favorable experiences with television coverage while sitting on the court of appeals and that, if confirmed, she would share her experiences with her new colleagues. Some commentators have raised the possibility that Justice Sotomayor will help convince her reluctant colleagues that the time for television coverage has come. (E.g., Editorial, “Cameras in the Court,” USA Today, July 13, 2009; Editorial, “Camera shy justice: The Supreme Court should be televised,” Pittsburgh Post Gazette, July 7, 2009; Editorial, “Supreme Court TV,” Los Angeles Times, June 11, 2009.) No one knows, of course, what Justice Sotomayor will do. But we should at least give the newly constituted Court some reasonable period of time to consider the issue.
Second, a non-binding resolution is likely to draw more support among Senators than a statutory mandate, and it need not be passed by the House or signed by the President. There is no reason to enact a law if a resolution will do.
Third, the Court may receive a non-binding resolution more favorably than a statutory mandate. The Court may perceive a mandate as an affront to its constitutional autonomy as a separate branch of government. Justice Kennedy suggested as much during testimony before a Congressional committee. It may even decide to ignore a mandate on the ground that it violates the Constitution’s scheme of separation of powers. We need not provoke what might be an unnecessary constitutional challenge.
Fourth, the newly established Supreme Court of the United Kingdom has just decided to allow cameras in its courtroom. A press release announcing the Court’s opening reports that “proceedings will be routinely filmed and made available to broadcasters.” (Supreme Court of the United Kingdom, Press Release, Oct. 1, 2009.) The press release cites the need for “transparen[cy]” and the “crucial role” that television can play in “letting the public see how justice is done” and “increase[ing] awareness of the UK’s legal system and the impact the law has on people’s lives.” (Ibid.) When the Court held its opening session just a few weeks ago, TV cameras sat “discretely” in the corners of the courtroom, according to the BBC. (BBC News, “Supreme Court hears first appeal,” http://news.bbc.co.uk/2/hi/uk_news/8289949.stm.) Hopefully the experience of the United Kingdom’s Supreme Court with television coverage will encourage our Supreme Court to follow suit.
My extensive floor statements of January 29, 2007, introducing S. 246, and February 13, 2009, introducing S. 446, set forth compelling reasons for allowing television coverage of the Supreme Court’s open proceedings and also explained why S. 445 is constitutional. (Cong. Record, Jan. 29, 2007, S831-34;Cong. Record, Feb. 13, 2009, S2332-36.) I laid out those reasons again on August 5, 2009, when I commented on the state of the Court during the floor debate on now-Justice Sotomayor’s nomination. (Cong. Record, Aug. 5, 2009, S8800-06.) This statement summarizes the key points of and supplements my earlier statements.
My main point was this: The American people have the right to observe the Court’s proceedings. But few Americans have any meaningful opportunity to do so. There are well less than a hundred oral arguments per year. Even those who are able to visit the Court are not likely to see an argument in full. Most will be given just three minutes to watch before they are shuffled out to make room for others. In high-profile cases, most visitors will be denied even a three-minute seating. There are not nearly enough seats to accommodate the demand. Those who wish to follow the Court’s proceedings must content themselves with reading the voluminous transcripts or listening to audiotapes released at the end of the Court’s term. It should come as no surprise that, according to a recent C-SPAN poll, nearly two-third of Americans favor televising the Court’s proceedings.
The Court decides too many cutting-edge questions of monumental importance to the American people—not just, as Justice Scalia once suggested in opposing television coverage, disputes between litigants—to deny them a meaningful opportunity to observe its proceedings. Consider just some of the issues the Court has decided in recent years: whether local school districts may fulfill the promise of Brown v. Board of Education by taking voluntary remedial steps to maintain integrated schools (Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)); whether public universities may consider race when evaluating applicants for admission in order to ensure diversity within their student bodies (Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 2344 (2003)); whether citizens have a constitutional right to own guns (District of Columbia v. Heller, 128 S. Ct. 2783 (2008)); and whether states may exercise the power of eminent domain to take a personal residence in order to make room for a commercial development (Kelo v. City of New London, 545 U.S. 469 (2005)).
And in 2000, of course, the Supreme Court decided what was perhaps the most important—and certainly the most controversial—question of all: who the next president of the United States would be (Bush v. Gore, 531 U.S. 98 (2000)). Can anyone seriously contend that the American people were not entitled to watch the oral argument in the case that ultimately decided the Presidency? Or that reading a transcript or listening to an audio was an adequate substitute for watching the oral argument?
Trends over the last few years show that the need for public scrutiny of the Court’s work, which only television coverage can adequately provide, is now more important than ever. None is more significant than the Court’s declining workload and willingness to leave important issues and circuit splits unresolved.
The Court’s workload has steadily declined. In 1870, the Court decided 280 of the 636 cases on its docket; in 1880, 365 of the 1,202 cases on its docket; and in 1886, 451 of the 1,396 cases on its docket. (E.g., Edward A. Hartnett, “Questioning Certiorari: Some Reflects on Seventy Five Years After the Judges Bill,” 100 Colum. L. Rev. 1643, 1650 (2006).) In 1926, the year Congress gave the Court nearly complete control of its docket by passing the Judiciary Act of 1925, the Court issued 223 signed opinions. The Court’s output has declined significantly ever since. In the first year of the Rehnquist Court, the Court issued 146 opinions; in its last year, the Court issued only 74. (E.g., Kenneth W. Starr, “The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft,” 90 Minnesota Law Review 1363, 1367-68 (2006).)
Chief Justice Rehnquist’s successor, John Roberts, said during his confirmation hearing that the Court could and should take more cases. But it has not done so. During the 2005 Term, it heard argument in 87 cases, and issued 69 signed opinions; during the 2006 Term, it heard argument in 78 cases and issued 68 signed opinions; and during the 2007 Term, it heard argument in 75 cases and issued 67 signed opinions. The numbers were much the same during the recently concluded 2008 Term: The Court heard argument in 78 cases and issued 75 signed opinions. A recent article in the Duke Law Journal notes that “[e]ven though it possess resources unimaginable to its predecessors, including . . . a bevy of talented clerks, the Supreme Court decides only a trickle of cases.” The article goes on to observe that the “most striking feature of contemporary Supreme Court jurisprudence is how little of it there is.” (Tracey E. George & Christopher Guthrie, “Remaking the United States Supreme Court in the Courts’ of Appeals Image,” 58 Duke Law Journal 1439, 1441-42 (2009).)
As Kenneth Starr has observed, Congress gave the Supreme Court control over what cases it hears so it can focus on “two broad objectives: (i) to resolve important questions of law and (ii) to maintain uniformity in federal law.” (Starr, supra, at 1364.) It is clear that the Court has failed to meet either objective and that only by putting its “shoulder to the wheel and work[ing] harder,” to quote Mr. Starr, can it ever hope to do so. (Id. at 1385.)
The Court continues to leave important issues unresolved. Recently it even refused to decide the constitutionality of the Bush Administration’s Terrorist Surveillance Program—commonly referred to as the “warrantless wiretapping program.” This program, which began soon after the 9-11 attacks, operated in secret until The New York Times exposed it in 2005. Well-deserved public condemnation followed its exposure. In 2006, a federal district court declared the program unconstitutional. A divided court of appeals reversed on the ground that the plaintiffs lacked standing to bring suit, thereby leaving the merits unaddressed. In 2008, the plaintiffs asked the Supreme Court to hear case, but it declined. This year I introduced legislation (S. 877) to require the Court to exercise jurisdiction over appeals challenging the constitutionality of the Program.
More recently, the Court refused to decide whether the Foreign Sovereign Immunities Act shields Saudi Arabia and its officials from damages suits arising from their apparent complicity in the 9-11 terrorist attacks. Last year the United States Court of Appeals for the Second Circuit ruled (incorrectly, in my view) that the Act immunizes them from suit. The victims petitioned the Court for certiorari. In its certiorari-stage brief, the Solicitor General conceded that the Second Circuit had misinterpreted the Act. But late last year the Court denied the petition without dissent and, as usual, without explanation. (In re Terrorist Attacks on September 11, 2001 (No. 08-640).) The result will be to deny legal redress to thousands of 9-11’s victims.
No less important, the Court also continues to leave too many circuit splits unresolved. The article in the Duke Law Journal I cited a moment ago notes that the Roberts Court “is unable to address even half” of the circuit splits “identified by litigants.” (George and Guthrie, supra, at 1449.) Mr. Starr notes that the “Supreme Court by and large does not even pretend to maintain the uniformity of federal law.” (Starr, supra, at 1364.)
Among the questions on which the circuits have recently split are: May jurors consult the Bible during their deliberations in a criminal case and, if so, under what circumstances? Must a civil lawsuit predicated on a “state secret” be dismissed? Does the spouse of a United States citizen remain eligible for an immigrant visa after the citizen dies? Must an employee who alleges that he was unlawfully discriminated against for claiming benefits or exercising other rights under an employer-sponsored healthcare or pension plan “exhaust administrative remedies” (that is, first allow the plan to address his claim) before filing suit in court? When does a collective bargaining agreement confer on retirees the right to lifetime healthcare benefits? May a federal court “toll” the statute of limitations in a suit brought against the federal government under the Federal Tort Claims Act if the plaintiff establishes that the government withheld information on which his claim is based? Is a defendant convicted of drug trafficking with a gun subject to additional prison time under a penalty-enhancing statute, or is his sentence limited to the period of time provided for in the federal drug-trafficking law? When may a federal agency withhold information in response to a FOIA request or court subpoena on the ground that it would disclose the agency’s “internal deliberations.” Should a federal admiralty claim, to which a jury trial right does not attach, be tried to a jury if it is joined with a non-admiralty claim?
Two developments since I gave my last floor speech have served only to reinforce my conclusion that public scrutiny must be brought to bear on the Court.
The first is the Court’s well-documented disregard of precedent, which the Court took to new levels during its 2008 Term. (E.g., Erwin Chemerinsky, “Forward, Supreme Court Review,” 43 Tulsa L. Rev. 627 (2008).) Consider three especially significant opinions handed down just this year: (1) 14 Penn Plaza, LLC v. Pyett, which held that an employee can be compelled to arbitrate a statutory discrimination claim under a collectively bargained-for arbitration clause to which he or she did not consent, contrary to the Court’s thirty-five-year-old decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ; (2) Gross v. FBL Financial Services, Inc. (2009), which held that in age discrimination cases, unlike cases brought under Title VII of the Civil Rights Act of 1964, the employer never bears the burden of proof no matter how compelling a showing of discrimination the plaintiff makes, contrary to the Court’s thirty-year-old decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); and (3) Ashcroft v. Iqbal, which gave license to district court judges to evaluate the “plausibility” of a complaint’s allegations, contrary to well-established rules of pleadings that date back at least fifty years to Conley v. Gibson, 355 U.S. 41 (1957). Legislation to overturn each of these decisions is now pending.
Each of these examples reflects a second recent trend: the Court’s bias in favor of corporate interests over the public interest. This has been the subject of extensive commentary. One commentator, Professor Jeffrey Rosen, has characterized the Court as “Supreme Court, Inc.” as a result of its decidedly pro-business rulings. (Jeffrey Rosen, “Supreme Court, Inc.,” The New York Times, Mar. 16, 2008.) Another, Professor Erwin Chemerinsky, has characterized the current Court as the “most pro-business Court of any since the mid-1930’s.” (Chemerinsky, “The Roberts Court at Age Three, 54 Wayne Law Review 947 (2008).)
A final point: While the Justices have so far refused to appear on television during open courtroom proceedings, they have not been shy about appearing on television outside the courtroom. Chief Justice Roberts and Stevens have appeared for interviews on ABC’s “Prime Time,” Justice Ginsburg on CBS News, Justice Breyer on “Fox News Sunday,” and Justices Scalia and Thomas on CBS’s “60 Minutes.” All of the Justices appeared for interviews that C-SPAN aired recently during its “Supreme Court Week” series. Justice Breyer and Alito even appeared on television to debate how the Court should interpret the Constitution and statutes. We cannot accept the Justices’ plea for anonymity when they so regularly appear before the camera.
I note in conclusion that, since my last floor speech, the media has continued to call for the televising of the Supreme Court’s proceedings. At least a dozen editorials have appeared during 2009 alone. (E.g., “Televised justice would be for all,” Boston Herald,” August 7, 2009; “Cameras in the court,” USA Today, July 13, 2009; “Camera shy justice: The Supreme Court should be televised,” Pittsburgh Post Gazette, July 7, 2009; “Supreme Court TV,” Los Angeles Times, June 11, 2009.) One editorial writer, The National Law Journal’s Tony Mauro, makes the case especially well, when he writes: “The Internet Age demands transparency from all institutions all the time. Any government body that lags behind is in danger of losing legitimacy, relevance and, at the very least, public awareness. . . . It does not take a battery of surveys to realize that the public will learn and understand more about the Supreme Court . . . if its proceedings are on view nationwide.” (“Court, cameras, action! Souter’s departure could clear the way for far more transparency at the Supreme Court,” USA Today, May 27, 2009.) A list of 2009 editorials, as compiled by C-SPAN, is appended.
Television coverage of the Supreme Court is long overdue. It is time for Congress to act. I urge my colleagues to support the resolution I am introducing today.
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