Congressional Record: September 26, 2005 (Senate)
Page S10426-S10430


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS


      By Mr. SPECTER (for himself, Mr. Leahy, Mr. Cornyn, Mr. Allen,
        Mr. Grassley, Mr. Schumer, and Mr. Feingold):
  S. 1768. A bill to permit the televising of Supreme Court
proceedings; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition to introduce
legislation that will give the public greater access to our Supreme
Court. This bill requires the high Court to permit television coverage
of its open sessions unless it decides by a vote of the majority of
Justices that allowing such coverage in a particular case would violate
the due process rights of one or more of the parties involved in the
matter.
  The purpose of this legislation is to open the Supreme Court doors so
that more Americans can see the process by which the Court reaches
critical decisions of law that affect this country and everyday
Americans. Because the Supreme Court of the United States holds power
to decide cutting-edge questions on public policy, thereby effectively
becoming a virtual ``super legislature,'' the public has a right to
know what the Supreme Court is doing. And that right would be
substantially enhanced by televising the oral arguments of the Court so
that the public can see and hear the issues presented to the Court.
With this information, the public would have insight into key issues
and be better equipped to understand the impact of the Court's
decisions.
  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 entitled Richmond Newspapers v.
Virginia. In this case, the Supreme Court noted that a public trial
belongs not only to the accused, but to the public and the press as
well; and that people now acquire information on court procedures
chiefly through the print and electronic media.
  That decision, in referencing the electronic media, appears to
anticipate televising court proceedings, although I do not mean to
suggest that the Supreme Court is in agreement with this legislation. I
should note that the Court could, on its own motion, televise its
proceedings but has chosen not to do so, which presents, in my view,
the necessity for legislating on this subject.
  When I argued the case of the Navy Yard, Dalton v. Specter, back in
1994, the Court proceedings were illustrated by an artist's drawings.
Now, however, the public gets a substantial portion, if not most, of
its information from television and the internet. While many court
proceedings are broadcast routinely on television, the public has
little access to the most important and highest court in this country.
The public must either rely on the print media, or stand in long lines
outside the Supreme Court in Washington DC in order to get a brief
glimpse of the open session from the public gallery.
  Justice Felix Frankfurter perhaps anticipated the day when Supreme
Court arguments would be televised when he said that he longed for a
day when: The news media would cover the Supreme Court as thoroughly as
it did the World Series, since the public confidence in the judiciary
hinges on the

[[Page S10427]]

public's perception of it, and that perception necessarily hinges on
the media's portrayal of the legal system.
  When I spoke in favor of this legislation in September of 2000, I
said, ``I do not expect a rush to judgment on this very complex
proposition, but I do believe the day will come when the Supreme Court
of the United States will be televised. That day will come, and it will
be decisively in the public interest so the public will know the
magnitude of what the Court is deciding and its role in our democratic
process.'' Today, I believe the time has come and that this legislation
is crucial to the public's awareness of Supreme Court proceedings and
their impact on the daily lives of all Americans.
  I pause to note that it was not until 1955 that the Supreme Court,
under the leadership of Chief Justice Warren, first began permitting
audio recordings of oral arguments. Between 1955 and 1993, there were
apparently over 5,000 recorded arguments before the Supreme Court. That
roughly translates to an average of about one hundred thirty two (132)
arguments annually. But audio recordings are simply ill suited to
capture the nuance of oral arguments and the sustained attention of the
American citizenry. Nor is it any response that people who wish to see
open sessions of the Supreme Court should come to the Capital and
attend oral arguments. For, according to one source: Several million
people each year visit Washington, D.C., and many thousands tour the
White House and the Capital. But few have the chance to sit in the
Supreme Court chamber and witness an entire oral argument. Most
tourists are given just three minutes before they are shuttled out and
a new group shuttled in. In cases that attract headlines, seats for the
public are scarce and waiting lines are long. And the Court sits in
open session less than two hundred hours each year. Television cameras
and radio microphones are still banned from the chamber, and only a few
hundred people at most can actually witness oral arguments. Protected
by a marble wall from public access, the Supreme Court has long been
the least understood of the three branches of our federal government.
  In light of the increasing public desire for information, it seems
untenable to continue excluding cameras from the courtroom of the
Nation's highest court. As one legal commentator observes: An effective
and legitimate way to satisfy America's curiosity about the Supreme
Court's holdings, Justices, and modus operandi is to permit broadcast
coverage of oral arguments and decision announcements from the
courtroom itself.
  Televised court proceedings better enable the public to understand
the role of the Supreme Court and its impact on the key decisions of
the day. Not only has the Supreme Court invalidated Congressional
decisions where there is, in the views of many, simply a difference of
opinion to what is preferable public policy, but the Court determines
novel issues such as whether AIDS is a disability under the Americans
with Disabilities Act, whether Congress can ban obscenity from the
Internet, and whether states can impose term limits upon members of
Congress. The current Court, like its predecessors, hands down
decisions which vitally affect the lives of all Americans. Since the
Court's historic 1803 decision, Marbury v. Madison, the Supreme Court
has the final authority on issues of enormous importance from birth to
death. In Roe v. Wade (1973), the Court affirmed a Constitutional right
to abortion in this country and struck down state statutes banning or
severely restricting abortion during the first two trimesters on the
grounds that they violated a right to privacy inherent in the Due
Process Clause of the Fourteenth Amendment. In the case of Washington
v. Glucksberg (1997), the court refused to create a similar right to
assisted suicide. Here the Court held that the Due Process Clause does
not recognize a liberty interest that includes a right to commit
suicide with another's assistance.

  In the seventies, the Court first struck down then upheld state
statutes imposing the death penalty for certain crimes. In Furman v.
Georgia (1972), the Court struck down Georgia's death penalty statute
under the cruel and unusual punishment clause of the Eighth Amendment
and stated that no death penalty law could pass constitutional muster
unless it took aggravating and mitigating circumstances into account.
This decision led Georgia and many states to amend their death penalty
statutes and, four years later, in Gregg v. Georgia (1976), the Supreme
Court upheld Georgia's amended death penalty statute.
  Over the years, the Court has also played a major role in issues of
war and peace. In its opinion in Scott v. Sanford (1857)--better known
as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a
slave who had been taken into ``free'' territory by his owner, was
nevertheless still a slave. The Court further held that Congress lacked
the power to abolish slavery in certain territories, thereby
invalidating the careful balance that had been worked out between the
North and the South on the issue. Historians have noted that this
opinion fanned the flames that led to the Civil War.
  The Supreme Court has also ensured adherence to the Constitution
during more recent conflicts. Prominent opponents of the Vietnam War
repeatedly petitioned the Court to declare the Presidential action
unconstitutional on the grounds that Congress had never given the
President a declaration of war. The Court decided to leave this
conflict in the political arena and repeatedly refused to grant writs
of certiorari to hear these cases. This prompted Justice Douglas,
sometimes accompanied by Justices Stewart and Harlan, to take the
unusual step of writing lengthy dissents to the denials of cert.
  In New York Times Co. v. United States (1971)--the so called
``Pentagon Papers'' case--the Court refused to grant the government
prior restraint to prevent the New York Times from publishing leaked
Defense Department documents which revealed damaging information about
the Johnson Administration and the war effort. The publication of these
documents by the New York Times is believed to have helped move public
opinion against the war.
  In its landmark civil rights opinions, the Supreme Court took the
lead in effecting needed social change, helping us to address
fundamental questions about our society in the courts rather than in
the streets. In Brown v. Board of Education, the Court struck down the
principle of ``separate but equal'' education for blacks and whites and
integrated public education in this country. This case was then
followed by a series of civil rights cases which enforced the concept
of integration and full equality for all citizens of this country,
including Garner v. Louisiana, 1961, Burton v. Wilmington Parking
Authority, 1961, and Peterson v. City of Greenville, 1963.
  In recent years Marbury, Dred Scott, Furman, New York Times, and Roe,
familiar names in the lexicon of lawyerly discussions concerning
watershed Supreme Court precedents, have been joined with similarly
important cases like Hamdi, Rasul and Roper all cases that affect
fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court
concluded that although Congress authorized the detention of
combatants, due process demands that a citizen held in the United
States as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral
decisionmaker. The Court reaffirmed the nation's commitment to
constitutional principles even during times of war and uncertainty.
Similarly, in Rasul v. Bush, 2004, the Court held that the federal
habeas statute gave district courts jurisdiction to hear challenges of
aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism.
Earlier this year in Roper v. Simmons, 2005, the Court held that
executions of individuals who were under 18 years of age at the time of
their capital crimes is prohibited by Eighth and Fourteenth Amendments.
  In June of this year, the Supreme Court issued Kelo v. City of New
London, 2005, a highly controversial opinion in which a majority of the
justices held that a city's exercise of eminent domain power in
furtherance of an economic development plan satisfied the
Constitution's Fifth Amendment ``public use'' requirement despite
the absence of any blight. Moreover, on June 27, 2005, the High Court
issued two rulings regarding the public display of the Ten
Commandments. Each opinion was backed by a different coalition of four,
with Justice Breyer as the swing vote.

[[Page S10428]]

The only discernible rule seems to be that the Ten Commandments may be
displayed outside a public courthouse, Van Orden v. Perry, but not
inside (McCreary County v. American Civil Liberties Union) and may be
displayed with other documents, but not alone. In Van Orden v. Perry,
the Supreme Court permitted a display of the Ten Commandments to remain
on the grounds outside the Texas State Capitol. However, in McCreary
County v. ACLU, a bare majority of Supreme Court Justices ruled that
two Kentucky counties violated the Establishment Clause by erecting
displays of the Ten Commandments indoors for the purpose of advancing
religion. While the multiple concurring and dissenting opinions in
these cases serve to explain some of the confounding differences in
outcomes, it would have been extraordinarily fruitful for the American
public to watch the Justices as they grappled with these issues during
oral arguments that, presumably, reveal much more of their deliberative
processes than mere text.

  Irrespective of ones view concerning the merits of these decisions,
it is clear beyond cavil that they have a profound effect on the
interplay between the government, on the one hand, and the individual
on the other. So, it is with these watershed decisions in mind that I
introduce legislation designed to make the Supreme Court less esoteric
and more accessible to common men and women who are so clearly affected
by its decisions.
  When deciding issues of such great national import, the Supreme Court
is rarely unanimous. In fact, a large number of seminal Supreme Court
decisions have been reached through a vote of 5-4. Such a close margin
reveals that these decisions are far from foregone conclusions
distilled from the meaning of the Constitution and legal precedents. On
the contrary, these major Supreme Court opinions embody critical
decisions reached on the basis of the preferences and views of each
individual justice. In a case that is decided by a vote of 5-4, an
individual justice has the power by his or her vote to change the law
of the land.
  Some would argue that the Court has even played a significant role in
deciding political contests as well. Who can forget the Court's
dramatic decision in Bush v. Gore that enabled the country to move on
from a bitterly fought presidential race. That decision, with its
enormous repercussions for the Nation, cried out for greater public
scrutiny of the process by which the Justices heard arguments and all
but decided the fate of the 2000 presidential race.
  Given the enormous significance of each vote cast by each Justice on
the Supreme Court, televising the proceedings of the Supreme Court will
allow sunlight to shine brightly on these proceedings and ensure
greater public awareness and scrutiny.
  In a democracy, the workings of the government at all levels should
be open to public view. With respect to oral arguments, the more
openness and the more real the opportunity for public observation the
greater the understanding and trust. As the Supreme Court observed in
the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an
open society do not demand infallibility from their institutions, but
it is difficult for them to accept what they are prohibited from
observing.''
  It was in this spirit that the House of Representatives opened its
deliberations to meaningful public observation by allowing C-SPAN to
begin televising debates in the House chamber in 1979. The Senate
followed the House's lead in 1986 by voting to allow television
coverage of the Senate floor.
  Beyond this general policy preference for openness, however, there is
a strong argument that the Constitution requires that television
cameras be permitted in the Supreme Court.
  It is well established that the Constitution guarantees access to
judicial proceedings to the press and the public. In 1980, the Supreme
Court relied on this tradition when it held in Richmond Newspapers v.
Virginia that the right of a public trial belongs not just to the
accused, but to the public and the press as well. The Court noted that
such openness has ``long been recognized as an indisputable attribute
of an Anglo-American trial.''
  Recognizing that in modern society most people cannot physically
attend trials, the Court specifically addressed the need for access by
members of the media: Instead of acquiring information about trials by
first hand observation or by word of mouth from those who attended,
people now acquire it chiefly through the print and electronic media.
In a sense, this validates the media claim of acting as surrogates for
the public. [Media presence] contributes to public understanding of the
rule of law and to comprehension of the functioning of the entire
criminal justice system.

  To be sure, a strong argument can be made that forbidding television
cameras in the court, while permitting access to print and other media,
constitutes an impermissible discrimination against one type of media
over another. In recent years, the Supreme Court and lower courts have
repeatedly held that differential treatment of different media is
impermissible under the First Amendment absent an overriding
governmental interest. For example, in 1983 the Court invalidated
discriminatory tax schemes imposed only upon certain types of media in
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In
the 1977 case of ABC v. Cuomo, the Second Circuit rejected the
contention by the two candidates for mayor of New York that they could
exclude some members of the media from their campaign headquarters by
providing access through invitation only. The Court wrote that: Once
there is a public function, public comment, and participation by some
of the media, the First Amendment requires equal access to all of the
media or the rights of the First Amendment would no longer be tenable.
  In the 1965 case of Estes v. Texas, the Supreme Court rejected the
argument that the denial of television coverage of trials violates the
equal protection clause. In the same opinion, the Court held that the
presence of television cameras in the Court had violated a Texas
defendant's right to due process. Subsequent opinions have cast serious
doubt upon the continuing relevance of both prongs of the Estes
opinion.
  In its 1981 opinion in Chandler v. Florida, the court recognized that
Estes must be read narrowly in light of the state of television
technology at that time. The television coverage of Estes' 1962 trial
required cumbersome equipment, numerous additional microphones, yards
of new cables, distracting lighting, and numerous technicians present
in the courtroom. In contrast, the court noted, television coverage in
1980 can be achieved through the presence of one or two discreetly
placed cameras without making any perceptible change in the atmosphere
of the courtroom. Accordingly, the Court held that, despite Estes, the
presence of television cameras in a Florida trial was not a violation
of the rights of the defendants in that case. By the same logic, the
holding in Estes that exclusion of television cameras from the courts
did not violate the equal protection clause must be revisited in light
of the dramatically different nature of television coverage today.
  Given the strength of these arguments, it is not surprising that over
the last two decades there has been a rapidly growing acceptance of
cameras in American courtrooms which has reached almost every court
except for the Supreme Court itself. Ironically, it was the Chandler
decision which helped spur the spread of television cameras in the
courts. Shortly after Chandler, the American Bar Association revised
its canons to permit judges to authorize televising civil and criminal
proceedings in their courts.
  Following the green lights provided by the Supreme Court and the ABA,
nearly all the States have decided to permit electronic coverage of at
least some portion of their judicial proceedings. In 1990, the Federal
Judicial Conference authorized a three-year pilot program allowing
television coverage of civil proceedings in six federal district courts
and two federal circuit courts. The program began in July, 1991, and
ran through December 31, 1994. The Federal Judicial Center monitored
the program and issued a positive final evaluation. In particular, the
Judicial Center concluded that: Overall, attitudes of judges toward
electronic media coverage of civil proceedings were initially neutral
and became more favorable after experience under the pilot program.

[[Page S10429]]

  The Judicial Center also concluded that: Judges and attorneys who had
experience with electronic media coverage under the program generally
reported observing small or no effects of camera presence on
participants in the proceedings, courtroom decorum, or the
administration of justice.
  Despite this positive evaluation, the Judicial Conference voted in
September 1994, to end the experiment and not to extend the camera
coverage to all courts. This decision was made in the aftermath of the
initial burst of television coverage of O.J. Simpson's pretrial
hearing. Some have argued that the decision was unduly influenced by
this outside event. In March 1996, the Judicial Conference revisited
the issue of television cameras in the federal courts and voted to
permit each Federal court of appeals to ``decide for itself whether to
permit the taking of photographs and radio and television coverage of
appellate arguments.'' Since that time, two circuit courts have enacted
rules permitting television coverage of their arguments. It is
significant to note that these two circuits were the two circuits which
participated in the federal experiment with television cameras a few
years earlier. It seems that once judges have an experience with
cameras in their courtroom, they no longer oppose the idea.

  On September 6, 2000, the Senate Judiciary Committee's Subcommittee
on Administrative Oversight and the Courts held a hearing titled
``Allowing Cameras and Electronic Media in the Courtroom.'' The primary
focus of the hearing was Senate bill S. 721, legislation introduced by
Senators Grassley and Schumer that would give Federal judges the
discretion to allow television coverage of court proceedings. One of
the witnesses at the hearing, Judge Edward Becker, Chief Judge U.S.
Court of Appeals for the Third Circuit, spoke in opposition to the
legislation and the presence of television cameras in the courtroom.
The remaining five witnesses, however, including a Federal judge, a
State judge, a law professor and other legal experts, all testified in
favor of the legislation. They argued that cameras in the courts would
not disrupt proceedings but would provide the kind of accountability
and access that is fundamental to our system of government.
  In my judgment, Congress, with the concurrence of the President, or
overriding his veto, has the authority to require the Supreme Court to
televise its proceedings. Such a conclusion is not free from doubt and
is highly likely to be tested with the Supreme Court, as usual, having
the final word. As I see it, there is clearly no constitutional
prohibition against such legislation.
  Article 3 of the Constitution states that the judicial power of the
United States shall be vested ``in one Supreme Court and such inferior
Courts as the Congress may from time to time ordain and establish.''
While the Constitution specifically creates the Supreme Court, it left
it to Congress to determine how the Court would operate. For example,
it was Congress that fixed the number of justices on the Supreme Court
at nine. Likewise, it was Congress that decided that any six of these
justices are sufficient to constitute a quorum of the Court. It was
Congress that decided that the term of the Court shall commence on the
first Monday in October of each year, and it was Congress that
determined the procedures to be followed whenever the Chief Justice is
unable to perform the duties of his office.
  Beyond such basic structural and operational matters, Congress also
controls more substantive aspects of the Supreme Court. Most
importantly, it is Congress that in effect determines the appellate
jurisdiction of the Supreme Court. Although the Constitution itself
sets out the appellate jurisdiction of the Court, it provides that such
jurisdiction exist ``with such exceptions and under such regulations as
the Congress shall make.'' In the early days of the Supreme Court,
Chief Justice Marshall, writing for the Court in Durousseau v. United
States, recognized that the power to make exceptions to the Court's
jurisdiction is the equivalent of the power to grant jurisdiction,
since exceptions can be ``implied from the intent manifested by the
affirmative description [of jurisdiction].''
  The Supreme Court recognized the power of Congress to control its
appellate jurisdiction in a dramatic way in the famous 1868 case of Ex
Parte McCardle. In this case, McCardle, a newspaper editor, was being
held in custody by the military for trial on charges stemming from the
publication of articles alleged to be libelous and incendiary. McCardle
petitioned the Supreme Court for a writ of habeas corpus. The Court
heard his case but, before it rendered its opinion, Congress repealed
the statute that gave the Supreme Court jurisdiction to hear the habeas
appeal. In light of this Congressional action, the Supreme Court felt
compelled to dismiss the case for lack of jurisdiction.
  Some objections have been raised to televised proceedings of the
Supreme Court on the ground that it would subject justices to undue
security risks. My own view is such concerns are vastly overstated.
Well-known members of Congress, walk on a regular basis in public view
in the Capitol complex. Other very well-known personalities,
presidents, vice presidents, cabinet officers, all are on public view
with even incumbent presidents exposed to risks as they mingle with the
public. Such risks are minimal in my view given the relatively minor
exposure that Supreme Court justices would undertake through television
appearances.
  As I explained earlier, the Supreme Court could, of course, permit
television through its own rule but has decided not to do so. Congress
should be circumspect and even hesitant to impose a rule mandating the
televising of Supreme Court proceedings and should do so only in the
face of compelling public policy reasons. The Supreme Court has such a
dominant role in key decision-making functions that their proceedings
ought to be better known to the public; and, in the absence of Court
rule, public policy would be best served by enactment of legislation
requiring the televising of Supreme Court proceedings.
  This legislation embodies sound policy and will prove valuable to the
public. I urge my colleagues to support this bill.
  I ask unanimous consent that the text of the bill be printed in the
Record.
  There being no objective, the bill was ordered to be printed in the
Record, as follows:

                                S. 1768

       Be it enacted by the Senate and House of Representatives of
     the United States of America in Congress assembled,

     SECTION 1. AMENDMENT TO TITLE 28.

       (a) In General.--Chapter 45 of title 28, United States
     Code, is amended by inserting at the end the following:

     ``Sec. 678. Televising Supreme Court proceedings

       ``The Supreme Court shall permit television coverage of all
     open sessions of the Court unless the Court decides, by a
     vote of the majority of justices, that allowing such coverage
     in a particular case would constitute a violation of the due
     process rights of 1 or more of the parties before the
     Court.''.
       (b) Clerical Amendment.--The chapter analysis for chapter
     45 of title 28, United States Code, is amended by inserting
     at the end the following:

``678. Televising Supreme Court proceedings.''.

  Mr. LEAHY. I am pleased to join Senator Specter as a cosponsor of
this bill that would require the televising of Supreme Court
proceedings.
  In the Senate Judiciary Committee, we recently conducted open
hearings on the nomination of John G. Roberts to be Chief Justice of
the United States. We raised this matter with Judge Roberts. I have
long believed in sunshine in government. Our democracy works best when
our citizens have access to their government. I have supported efforts
to make all three branches of our Federal Government more accessible.
Except for rare closed sessions, the proceedings Congress and its
committees are open to the public and carried live on cable television
and radio. In addition, Members and committees are using the Internet
and Web sites to make their work available to their constituencies and
the general public.
  The work of executive branch agencies is subject to public scrutiny
through the Freedom of Information Act, among other mechanisms. Despite
the current administration's dramatic shift toward excessive secrecy,
the Freedom of Information Act remains a cornerstone of democracy. It
establishes the right of Americans to know what their government is
doing--or not doing. As President Johnson said in

[[Page S10430]]

1966, when he signed the Freedom of Information Act into law:

       This legislation springs from one of our most essential
     principles: A democracy works best when the people have all
     the information the security of the Nation permits.

  Although most judicial proceedings are open to those who can travel
to the courthouse and wait in line, emerging technology allows the
opportunity to invite the rest of the country into the courtroom. All
50 States have allowed some form of audio or video coverage of court
proceedings, but Federal courts lag behind. Previously, I have
cosponsored several bills with Senator Grassley to address this,
including the Sunshine in the Courtroom Act of 2005.
  The legislation I am cosponsoring today extends the tradition of
openness to the Nation's highest Court and can help Americans be better
informed about the important decisions that are made there and how they
are made. This bill requires the Supreme Court to permit television
coverage of all open sessions of the Court. At the same time, it
protects the parties from violation of their due process rights by
permitting a majority of the Justices to suspend this coverage for a
particular session if due process requires.
  In 1994, the Judicial Conference concluded that the time was not ripe
to permit cameras in the Federal courts, and rejected a recommendation
of the Court Administration and Case Management Committee to authorize
the photographing, recording, and broadcasting of civil proceedings in
Federal trial and appellate courts.
  The Supreme Court is often the final arbiter of constitutional
questions and represents the ultimate protection of individual rights
and liberties. Allowing the public greater access to its public
proceedings will allow Americans to evaluate for themselves the quality
of justice in this country, and deepen their understanding of the work
that goes on in the Court.
                                 ______