Legal News: Cameras in the Supreme Court?

Check out this article on the recently re-introduced bill, sponsored by Sen. Arlen Specter (R-PA), to require the Supreme Court to televise its proceedings. Specter has advocated televising the Court's proceedings before, by sponsoring SB 1768 last year to that effect, but his proposal did not reach the Senate floor. Regardless of your attitude toward the Supreme Court, however, the bottom line remains the same-is Specter's legislation (co-sponsored by one other Republican and three Democrats) going to benefit or hinder the Court's deliberative process?

To take a look at this issue, I am going to examine some of the senator's arguments, from his statement in the Congressional Record made upon the bill's re-introduction. The new bill is known as SB 344.

- "With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions."

The problem with this reasoning is that Specter's bill only televises oral arguments, not the justices' conference, discussions with law clerks, or any other internal communications that may contribute to deciding the outcome of a case. Televised coverage of oral argument would allow the public to see only a part of the case, excluding other facets that have as much or greater bearing on the ultimate disposition. In order to put much of what is said at oral argument into context, one could read the briefs that are available on the Court's website, but even this would be an incomplete picture. No one, not even the justices' office staff, are allowed in the room during conference. Ultimately, without delving into the briefs and other documents related to the case, a televised oral argument would lack the context needed to accomplish the bill's purported goals.

- "In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States."

The decision to which Senator Specter is referring is Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), in which the Court, in an opinion written by Chief Justice Warren Burger, upheld the right of the public to attend criminal trials. In the opinion, he cited freedom of the speech and press, as well as the Due Process Clause of the Fourteenth Amendment. However, it is important to note that Richmond dealt with allowing members of the public to attend trials, and criminal trials at that, not with any specific right to televised media coverage (although media coverage, through members of the press, is implicit in the right to attend). Whether the Court would recognize a constitutional right to television coverage of its own proceedings is open to speculation (although I doubt Justice Souter would be writing that opinion-he is quoted as saying that television cameras would enter the chamber "over my dead body").

As the senator noted in his introductory statement, the Court could opt out of television coverage when necessary to protect the Due Process rights of one or more of the parties involved. However, if this bill passes, any such decision by the Court would be subject to strict scrutiny, and must be narrowly tailored to achieve a compelling government interest. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

- "I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices."

At this point, the question becomes what television cameras will add to the process that is not already gained by allowing transcripts and audiotapes. Requiring Supreme Court oral arguments to be televised would give Americans a visual component to what had previously been depicted only in drawings and playing back a tape recording on the news that night. One could gain from the large percentage of communication that is purported to be visual, while being able to observe the process of oral argument for what is probably the first time. One of the positive effects would thus be transparency-while oral argument is not the only factor in the justices' decision, it may provide a window into their thoughts on a particular case, and thus make the Court seem more "accessible" to many Americans.

However, like many Supreme Court opinions, we must here employ a balancing test. Televising the Court's oral arguments could potentially demystify the process in the minds of many people, and educate the public about what goes on after the first "Oyez." But introducing television cameras also introduces the weapon of public opinion. Though the Court may not be as susceptible to political pressures as Congress, the justices are nonetheless a product of their time. Who can doubt that this was behind some of the most noteworthy (and in some cases, notorious) Supreme Court rulings in our history? Korematsu was handed down in the wake of Pearl Harbor, with our country teetering on the brink of defeat in the Second World War. A few years earlier, West Coast Hotel v. Parrish was the "switch in time that saved nine," sparing the justices and the nation from FDR's Court-packing plan. And more recently, we have borne witness to an entirely new form of political influence, this time coming from Ottawa, Sydney, and the halls of the European Parliament in Strasbourg. Allowing counsel access to television cameras introduces the possibility that the medium will be used for such invasive means, with ramifications no one can yet grasp.

These are just a few of the arguments for and against televising the proceedings of the Supreme Court. Overall, like the country, the justices are divided on the use of this technology: Justices Scalia and Ginsburg are accepting of the idea, while Justices Thomas and Souter are opposed. My prediction is that the idea will not be adopted, barring a supermajority of justices, perhaps seven or eight, willing to put it into place.

Sources:
Statement on the current bill
Statement on the previous bill
NPPA Article on SB 1768

Music, Books, and Life

An update from Akron, before I return from my Super Bowl weekend at home:

- It's official: I will be attending the Acton Institute conference, "Toward a Free and Virtuous Society," in West Cornwall, Connecticut later this year. As I mentioned in an earlier post, this will be an intensive three-day program where I will gather with other scholars from theology, economics, and other fields to discuss the relationship between social and economic policies, such as assistance to the poor, and our God-given rights, such as freedom of religion. I am excited to be receiving books and other materials related to the conference, which should come in the mail closer to the conference date, and to gain knowledge in these fields I can use later in life. Plus, any time I can add to my bookshelves is a cause for celebration, especially given my limited resources while in school. I will probably post about it when I return.

- The "music" in the title is the soundtrack from the movie "Gettysburg," one of my favorite movies and CD's, the latter of which I finally bought this week at Barnes and Noble. So far, it has been worth every penny: a great score by composer Randy Edelman, to punctuate the historical importance of the great battle. The music from "Gettysburg" is becoming sort of a background for my life in general, since I consider law school a moral, intellectual, and spiritual crossroads, and a pivotal moment, perhaps the pivotal moment, of my life.

- On a lighter note, I was glad to see Tony Dungy and the Colts win the Super Bowl earlier tonight. I knew he and Bears coach Lovie Smith are both Christians, and I was impressed with what he said upon accepting the trophy, talking about the role his faith played in bringing his team to the championship game and coming out on top. Of course, the secular media did their best to try and weed it out of all the quotes (case in point-see the Associated Press article at http://news.yahoo.com/s/ap/20070205/ap_on_sp_fo_ga_su/fbn_super_bowl), but that didn't stop millions of people from hearing what he had to say on TV. I'm glad he mentioned God in his speech, and I'm sure Smith would have done the same thing if he had won.

- So far, my goal for 2007 to lose weight is coming along well. I have been working out in the fitness room in my apartment building regularly, at least since last week, and have been trying to eat better, including more fruits and vegetables. I have decided that the most important reason to lose weight is for myself-not so that someone else will accept me for who I am, because who I am now is the same person I will be after the weight is off. This time, I am doing it for myself-so that I can take better care of the body God has provided me, and so that I will have more energy to live as He has called me to do, and more confidence as I move forward. That being said, I am excited about the results that I have seen so far-I sleep better, have fewer muscle aches and joint pains, and generally more energy to get through the day.

- Tomorrow, we receive the problem for the Moot Court competition in Criminal Procedure, which will be held in Newark, New Jersey next month. So far, all we know is that our team, me and two other students, will produce an appellate brief and argue the case in front of a panel of judges. It sounds the same as our Appellate Advocacy class, only the stakes are much higher, and the topic is one I may have to do a little more research on ahead of time. That being said, I am thankful for the opportunity to explore a new area of law. Evidently, God wants me to go to New Jersey next month, and I resolve to do my best and not let Him down.

Reading: "Washington's God"

My reading selection for January is "Washington's God: Religion, Liberty, and the Father of Our Country" by Michael and Jana Novak, about the religious faith of our most well-known Founding Father. The authors' central thesis is that George Washington, contrary to the popular perception that he was a deist and one of the more secular-minded Founders, was a Bible-believing Christian and sincere Episcopalian throughout his life, as evidenced by both his public proclamations and speeches and the consistency of these with his private words and actions.

In keeping with how I normally write my book reviews, I will run through some thoughts on the book, and its thesis and message.

1) Probably the best thing about this book was the combination of my two favorite subjects: history and theology. To illustrate the intersection between the two fields, Part I of the book, entitled "The Man," went through Washington's life, and the specific trials he faced along the way to becoming our first president. The first section that stood out to me was "The Protection of Providence: Heroism on the Monongahela," detailing Washington's survival as a young officer in the Virginia militia during the French and Indian War.

Although I had read about Washington's experiences in the war while in school, and in other accounts of his life, the authors did a superb job of relating Washington's experiences to that with which he would be faced later in life. For example, as the colonel of the Virginia militia, Washington attacked a French column in the area around the Monongahela valley (today the area around Pittsburgh), killing ten men, including Sieur de Jumonville, a French diplomat. The French later took their revenge, attacking "Fort Necessity," Washington's hastily-erected fortification, and decimating his small force. However, under banner of truce, the French offered to let Washington go if he and his men surrendered, which is surprising, considering they could easily have executed Washington and his men in retaliation for Jumonville's death.

Another example from Washington's experiences on the frontier comes from his later expedition to the area with General Edward Braddock, the British commander. Washington wrote that at least four bullets pierced his coat, two horses were shot out from under him, and one Indian chief later recalled that he had at least "seventeen fair fires" at the young officer, none of which (thankfully) found its mark. One could attribute this to extraordinary good fortune or blind chance, but the authors note that with the accuracy with which the attackers' bullets found their marks that day (Braddock and virtually all other officers on horseback were killed), it appears that God had greater things in store for Washington.

Part II of the book, entitled "The Faith," delves more directly into the tenets of Washington's faith, and shows, at least based on his personal words, actions, and writings, that his beliefs appear to have been incompatible with the "deist" school of thought pervasive in many Enlightenment circles at the time. For example, even though Washington often eschewed any public proclamation of his personal beliefs, the authors point to evidence that this was not unusual for someone of Washington's Anglican faith.

As the authors point out, it is important to put Washington's words and actions into their historical context. The eighteenth century was a time in which a divide was growing between newer evangelical churches (such as Baptists and Methodists) and the more traditional Puritan and Episcopalian churches of New England and many areas of the South, including Virginia. Evangelicals of the time tended toward a "warmer," more emotional view of the Lord, stressing a personal relationship with Jesus Christ as Lord and Savior, and the intense feelings following worship and conversion. On the other hand, as Novak and Novak point out, Washington belonged to the Anglican faith, which tended toward less explicit mentions of Jesus Christ, and one's personal relationship with the Savior, in favor of an increased role of reason, drawing upon a long-standing classical and theological tradition. It is too complex to do justice in a blog post, but I would recommend this section of the book for its background into the complex cultural and religious factors that influenced Washington as a man and national leader.

Overall, the book does a wonderful job of providing a historical background that helps explain why Washington may have been less open about his faith than many today would find necessary or comfortable.

2) Aside from the binding together of the theological and historical connotations of the debate over Washington's God, I was struck by the lessons for Christian living in Part III, entitled "The Fruit." Here, the authors present, through his writings and public prayers and proclamations, the lessons learned from Washington's life and travails as a soldier, statesman, and follower of Christ. These are timeless truths, still as relevant today as they were over two hundred years ago, told from the point of view of a man who had lived, and at times suffered greatly, in his role in history. A Christian at any stage of his or her walk with the Lord, or anyone seeking to know more about Christian life and theology, can benefit from these readings from the father of our country.

One of these that stood out as relevant to my life was the notion that God acts through, not in spite of, our strengths and weaknesses as human beings. Beginning in college, and especially in law school, I have been troubled by the idea that somehow, what I say or do will stand in the way of God's plan for my life. But while reading this book, I remembered that God often works not through miracles, or in contravention of free will, but through it-and that this is a sign of the artistry and intelligence He brings to a universe that is at all times under His control. Of course, it is easy to misread this as a license to fail and decrease one's efforts, but God expects our best, and in return, His plan for our lives will be accomplished. This passage underlined for me the importance of faith. I shouldn't panic in the face of a rejection letter or a grade that was lower than I expected, but instead should rejoice that God is using these apparent shortcomings to augment His glory. This is the most important lesson I face in law school, more so than anything found in a casebook.

The other main point I found relevant to my life at this juncture was Washington's firm belief that God's ways are "inscrutable," beyond human knowledge or interpretation. What I came to realize after reading this is that the inscrutability of God's will is something which I still struggle to accept, even after witnessing and going through events that don't fit into some logical framework. Early in high school, like many people my age, I developed a basic schema for how my life was supposed to turn out. Even though many of my ambitions so far have come to pass, I am just now beginning to see that God "winks" in my direction, and may take me in a direction I never anticipated, something grander, more exciting, and far beyond the limits of my capacity to devise or even imagine.

In the end, it comes back to whether I am willing to surrender my dreams, my ambitions, and my life to accomplish God's purpose for putting me on this earth. I am not so naive as to think that this is a passing phase, and that I will "get over it" and completely overcome my pride by age 30, but I am starting to realize that spiritual growth is an ongoing struggle against the forces of darkness in my own heart. This book served for me as a reminder to continue to work to trust God and place Him first in directing my life.

Overall, I recommend this book for its insights into the contrasts between Christianity and deism, as the authors spend a great deal of time explaining the differences, and why Washington belongs to the former. Also, it is an insightful look into the spiritual lessons and growth encountered throughout Washington's lifetime.