- The Washington Times - Sunday, April 23, 2006

While many Americans are concerned about their vanishing privacy, members of the Supreme Court are intent on keeping theirs. On April 4, in testimony before a House Appropriations subcommittee on the court’s annual budget, Justices Anthony Kennedy and Clarence Thomas opposed the intrusion of television into the court’s oral arguments, and Justice Kennedy claimed that any congressional action to do that would actually be a violation of the constitutional separation of powers.

“We feel very strongly,” Justice Kennedy told the committee, “that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches.”

Etiquette? This is the same Justice Anthony Kennedy who, not long after September 11, admirably went to high schools in several cities to sound out students on how much they knew of the Constitution — their own individual liberties and responsibilities as Americans — because, he said correctly: “The Constitution needs renewal and understanding each generation, or it’s not going to last.”

But before the House subcommittee, Justice Kennedy, dismissing the very notion that students and the rest of us could see the Constitution at work on television, said grandly: “We (justices) teach that… in our branch, we are judged by the way we write.”

Does Justice Kennedy really believe that many millions of Americans read the complete opinions of the Supreme Court in print or on the Internet? He should have asked the students in those high schools he visited. And, assuming he has friends and acquaintances who are not lawyers, he might ask them whether they eagerly search out the court’s extensive written opinions, concurring opinions and dissents — even on high-profile cases.

Or maybe Justice Kennedy believes the media, in its various forms, so adequately reports the court’s decisions that there is no need to disturb “the etiquette” between the branches by opening a televised window into the court. A few of the larger newspapers do a reasonable job of covering the high points of court opinions, and even oral arguments; but that’s hardly the same as experiencing the full drama — and there sometimes is drama — in the interplay during oral arguments between the justices, as well as the lawyers before them.

And around the country, how much do Americans, without access to the relatively small number of newspapers who do cover the court at any length, understand the scope and effect of those decisions?How much time is given to Supreme Court opinions on network television? As for cable television, except for discussions on C-SPAN, viewers are told very little of how the justices come to their decisions — or about the decisions themselves.

I once asked Justice William Brennan what he thought of televising the oral arguments. Unhesitatingly, he said, “Of course.” He was very concerned that for too many Americans, the court’s workings are distant and unfamiliar. In one of our conversations, Justice Brennan chastised much of the press for not starting to cover cases important to the public — from their very inception in the lower courts.

“That way,” he said, “when the case gets to us, the issues — and the people involved — will be known.” And, he added, the decisions would be more fully understood. In any case, he was not very pleased with the quality of much of the existing reporting on the court. Is Justice Kennedy all that satisfied with the accuracy and contextual reporting on his own written opinions and dissents?

At least Justice Kennedy, before the House subcommittee, was not as vehement in his opposition to television in oral arguments as Justice Souter was in his previous testimony there, when he pledged famously — or rather, infamously — that if television were allowed in his courtroom, it would be over his dead body. He obviously doesn’t realize — nor does Justice Kennedy — that this magisterial courtroom is not a private condominium. It is our courtroom — for all Americans.

What also angers me is thinking of the organizations — The Bill of Rights Institute; We the People (The Citizen and the Constitution); John Whitehead’s Rutherford Institute — and other groups teaching teachers how to bring the Constitution into the lives of students. How valuable it would be for them to show students the Supreme Court in action, followed by questions to visiting law professors asking for further information.

And why couldn’t schools around the country wire their assembly halls to see and hear the justices in vigorous conflict about police searches, abortion, warrantless government interception of telephone calls and the Internet?

But Justice Clarence Thomas told the subcommittee that there would be security concerns and “members of the Court who now have some degree of anonymity would lose their anonymity.”

If he’s that concerned about anonymity, maybe he should get another kind of day job.

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