- The Washington Times - Tuesday, June 9, 2009

Justice David H. Souter once famously vowed that the only way a television camera would gain access to the marble halls of the Supreme Court would be to “roll over my dead body,” but even with his impending retirement, it’s hard to tell whether high-court arguments will be broadcast anytime soon.

Justice Souter drew his anti-television line in the sand before a congressional panel in 1996, putting a stake through efforts by C-SPAN and others to televise hearings.

With his retirement, the spotlight moves to Supreme Court nominee Judge Sonia Sotomayor, who was nominated by President Obama to fill Justice Souter’s seat. Her likely confirmation opens a slim chance for advocates at least to rehash the arguments against cameras in the high court.

“At least you don’t have someone willing to give his life to keep cameras out of the courtroom,” said C-SPAN President Brian Lamb only half-jokingly.

Mr. Lamb said it’s hard to tell how a Justice Sotomayor would stand on the issue, though she has been televised during court hearings as a member of the 2nd Circuit Court of Appeals.

Public declarations by the nine justices on the nation’s highest court have ranged from tepid support for the idea to Souteresque over-my-dead-body declarations. No justice appears to be passionately in favor of entering the modern media age gracefully.

Lawmakers, including some who have tried forcing the nation’s high court to allow cameras inside, frequently turn to confirmation hearings to poll court nominees on their stance.

“Why shouldn’t the Supreme Court be open to the public with television?” Pennsylvania Sen. Arlen Specter, a Republican at the time, asked Justice Samuel A. Alito Jr. during Justice Alito’s 2006 confirmation hearings.

Justice Alito, the most recent addition to the nine-judge court, was circumspect in his answer, saying that he had joined colleagues on the 3rd Circuit Court of Appeals to allow the televising of oral arguments. He declined to say whether the Supreme Court should follow suit.

Judge Sotomayor, to judge from the public record, has not weighed in on the question of televising Supreme Court hearings. New members, such as Justice Alito, tend to defer to the more experienced justices.

Judge Ruth Bader Ginsburg is one of the few justices who has left open the possibility of televised Supreme Court proceedings, but she said in a 2000 interview it would have to be a unanimous 9-0 decision.

“I do not think a decision like that should ever be forced on judges who take a different view,” she said.

Plain-spoken Justice Antonin Scalia is nearly as vehement as Justice Souter on the question, though the two are frequent sparring partners on other points of law.

“I think there’s something sick about making entertainment out of other people’s legal problems,” he said in an October 2005 interview. “I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.”

The issue largely has been left to the Supreme Court justices themselves to decide — and ultimately to the chief justice to determine whether to push the matter.

Three members of the Senate Judiciary Committee pressed Chief Justice John G. Roberts Jr. during his confirmation hearings in 2005.

“Are you against cameras in the courtroom like [former Chief Justice William H.] Rehnquist was?” Sen. Charles Grassley, Iowa Republican, asked Justice Roberts in 2005.

“I don’t have a set view on that,” Justice Roberts replied.

Other justices have gone on record strongly against cameras in the court, though none has been quite as stark or colorful as Justice Souter.

Executives at C-SPAN, which carries 24-hour coverage of the other two branches of government, have been successful in winning rights to air delayed audio recordings of Supreme Court hearings.

C-SPAN aired the audio from the oral arguments in the 2000 Supreme Court battle between Vice President Al Gore and Texas Gov. George W. Bush and the recordings from other cases.

But C-SPAN, which first televised the House of Representatives in 1979 and the Senate in 1986, has yet to crack the nation’s high court.

At confirmation and appropriations hearings, lawmakers frequently have peppered the justices with questions over why they block public viewing of their arguments. Mr. Specter introduced legislation in 2006 and 2007 to open the high court to cameras but has been unsuccessful so far.

“I’d encourage you to break down the walls. It’s as easy as pushing this button,” Rep. John Culberson, Texas Republican, told Justices Stephen Breyer and Clarence Thomas during a spending hearing in April. “When you get that Web site up and running, broadcast those oral arguments and let the people see what wonderful work that you do, I think you would strengthen the republic.”

Justices Breyer and Thomas cautioned that much like what television had done to Congress — providing a veritable nonstop platform for grandstanding — it also could do to the high court.

“The court is reluctant to change the institution without knowing what the effect of opening the institution further will be on the institution, whether it will somehow harm it or whether it will enhance our processes,” Justice Thomas told a House panel in April. “There is constant discussion about that. But there is some disagreement.”

So for now, camera operators will have to settle for access to two out of the three branches of government.

“We have for years told the court that when they’re ready, we’ll carry all of it,” Mr. Lamb said. “Frankly, I used to say we’d have cameras in the court in five years, but I’ve stopped saying that.”

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