- The Washington Times - Monday, April 14, 2008


During a March 28 C-SPAN series, “America and the Courts,” Justices Anthony Kennedy and Clarence Thomas were seen insisting that it is vital to their relationships with one another on the Court that Congress not mandate TV coverage of their oral arguments because that (Justice Kennedy actually said) would introduce an “insidious dynamic” into the proceedings. Informing “We the People” is insidious?

On that C-SPAN program, in excerpts from the Kennedy-Thomas testimony before a House committee, Justice Kennedy sternly lectured that Congress should not legislate this intrusion into a key process in how and why they make their decisions, which affect so many of us. He explained: “We teach that we’re judged by what we write and by what we decide… I do not want an insidious dynamic introduced into my court that would affect the relations that I have with my colleagues.

“It would be unhelpful for the collegial relations… I don’t want to think that one of my colleagues asked a question because he or she was on TV. And I don’t want that temptation to exist… We (justices) think that we should be entitled to at least a presumption of correctness and to some deference in determining how best to preserve the dynamic of the wonderful proceeding that we know as oral argument.” Agreeing, Justice Thomas said: “The concern is that you begin to have a sort of a tabloid effect because of the personalities involved as opposed to the substance of the case.” From their high seats above us all, both these justices ignore that they serve on a public court, paid by taxpayer funds; and because of increasingly limited coverage of the Supreme Court in newspapers and on broadcast and cable television, many Americans know little of these nine distant arbiters of our rights and liberties in so many spheres of our existence.

As a member of the press, having been at some oral arguments, I can testify that in the exchanges between the justices and the lawyers before them, as well as during the often testy, barely disguised criticisms by the justices of one another, the temperaments and characters of these loomingly powerful deciders of what we can and can’t do with our lives illuminate why they sometimes come to the conclusions they reach. Not disembodied sages, Supreme Court justices are human, sometimes very human.

In similar testimony before a previous congressional committee, Justice Kennedy has more than implied that if Congress were to insist that the oral arguments be open to us all, that disrespect for the Justices’ “presumption of correctness” would violate the Constitution’s separation of powers! Where did he find that in the Constitution? Having read Madison’s notes of the 1787 Constitutional Convention, and copious analyses of that document by constitutional scholars, I haven’t seen any basis that the opening of our very highest tribunal to the people it judges is a violation of Madison’s assurance of our: “Right of freely examining public characters and measures, and of free communications among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” He did not exclude the Supreme Court.

Justice Kennedy himself, when he speaks at schools, warns: “We are in danger of having a generation that is simply ignorant of the principles that this country stands for and its history. You cannot preserve what you don’t understand. You cannot defend what you do not know.” And when I talk at middle and high schools, as well as colleges, I have often repeated Justice Kennedy’s essential warning especially now, as we fight to protect and preserve who we are that, “the Constitution needs renewal and understanding each generation, or else it’s not going to last.”

For all of us, including those who read the tabloids, seeing these nine Americans who continually argue among themselves about what this Constitution means in multiple dimensions of our lives in action would be a stimulus to find out more — not only about that document but also about the intriguing, exciting history of the Constitution.

In a lead editorial (Oct. 2, 2007), USA Today noted: “Where cameras have entered (the lower) courtrooms and legislatures, the experience has generally gone better than opponents feared, and been a boon to openness in government.” The Washington Times added that “at her confirmation hearings in 1993, Justice Ruth Bader Ginsburg said that televised proceedings (of the Supreme Court) ‘would be good for the public.’ ” Justice William Brennan told me the same thing.

At future confirmation hearings for Supreme Court nominees by any president, the Senate Judiciary Committee should ask each of them whether they agree with Justices Ginsburg and Brennan, and if not, why not? I am sure C-SPAN would run oral arguments, in full, of significant cases, and might even open an auxiliary channel for all oral arguments because some of the cases with the least obvious impact on the public end up changing many lives. Why shut us out?

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