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Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, April 26, 2006

Cameras In The Courts

Sen. Arlen Specter wrote an editorial in yesterday's Washington Post in which he argued in favor of televising Scotus arguments. I have to agree with him that this is a good idea, not just for Scotus, but also for Alabama.

The Senator, it seems, thinks the court is unduly harsh towards congress, and acts like a "super-legislature." His comments:

does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

I do not want to spend the time and space necessary to correct these misstatements. (But you can read this if you want some insight on them). Suffice it to say for now that the reason I support cameras in the court is that I think they would prevent the kind of petty name calling practiced by Sen. Specter, Justice Scalia, Mini-Moore and their kind.

There is nothing magical about an oral argument. One side gets up, argues to the court and answers questions from them. Then the other side does the same. So long as someone explains the background of the particular case, anyone can watch it and understand it.

If folks could do this, they would soon realize that Scotus is not a bunch of 'black robed tyrants' altering society to suit their evil wills. They are people who have a very difficult job. Two sides have a conflict and the justices have to decide which one wins. Both sides have good arguments, or the case would not have made it so far. They do not always pick the best one. But few and far between are the results deserving scorn like that spewed by Sen. Specter. If folks had seen the cases about which he complains, they would know he is speaking largely from a bruised ego.

So that is why I think Scotus proceedings ought to be televised. The argument applies with equal force to Alabama. There is another reason that Alabama ought to televise its arguments. Scotus at least makes their written opinions available for free on the web. Not so Alabama. You have to pay for it, or else wait for the print version and then got to the nearest law library to read it. In a state that elects its judges, this lack of information is inexcusable.

You could object that this might mean unwanted publicity for the litigants. However, the cameras would only show the lawyers and the justices. As for the subject matter, by the time the case gets that far it is pretty public anyway. Someone might also argue that it would be a hassle, and maybe twenty years ago that would have been true. Nowadays, though, no-one need even see the camera. It and the operator would probably be in another room. But isn't this undignified? Won't it create a bunch of preening publicity hounds? The answer to that is: Justice Scalia and Mini-Moore. Things can't get any worse.