Supreme Court Votes To Ban Telecasting of Same-Sex Trial

In a rare rebuke to a trial judge, the Supreme Court voted 5-4 to block the planned telecasting of the trial over the constitutionality of Proposition 8 (the ban on same-sex marriage). The vote broke down along ideological line with the five conservatives ruling that Chief U.S. District Judge Vaughn Walker, presiding over the trial, had not given the public enough time to comment on the telecasting before issuing his order. The ruling came in Hollingsworth vs. Perry, 09A648.

For full disclosure, I have long advocated filming of federal cases, particularly Supreme Court arguments. I believe that the Framers would have been thrilled by the technology to allow more citizens to watch such proceedings. The Constitution clearly states a principle of open, public proceedings. However, judges have resisted efforts in the federal system to follow the trend in state courts. We have not seen any of the dysfunctional problems in the state system that are often raised in this debate. More importantly, open courts play a critical role in our constitutional system. It is one of the best checks of governmental (and, yes, judicial abuse). It is ridiculous that we have people standing in line for days at major trials to get one of the “public seats” when millions could watch the proceedings.

This is normally a matter left to the discretion of a trial judge. To be sure, there are always concerns about the safety of witnesses, but those concerns are routinely addressed by positioning the camera to avoid showing a witness when there is a credible fear. In this case, conservatives have said that witnesses will fear a backlash for opposing same-sex marriage and even physical attacks. Yet, the names of these witnesses and their identifying information will not be sealed.

I disagree with the Court’s ruling, which will now bar the broadcast of one of the most important civil rights challenges of the decade. It not only disregards the discretion given to the trial court, but ignored that fact that this pilot program was approved after long debate last month by the Ninth Circuit Court of Appeals. It was left to the trial judges to order such taping in non-jury, civil trials.

The issue went to a Court that has historically opposed taping its own proceedings. Most of the justices do not want cameras in the Supreme Court and some have hinted that they might leave the bench. The objection is perfectly absurd in my view. There is no reason why the public should have to stand in line to get a few seats in the chamber rather than watch the proceedings on C-Span. Yet, conservatives knew that this was the perfect group to which to appeal the California ruling.

The majority was composed of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito. They insist that the District Court improperly amended the Ninth Circuit rule to allow telecasting. The majority is correct that the district court issued its own construction of the rules. However, the majority noted that, even if it had been properly amended, it would still have reservations of the plan.

In dissent, Justice Breyer found no evidence of credible threat and said that the parties were given ample time to comment on the proposal. Moreover, he accuses the Court of suddenly deciding to “micromanage” local court rules on such issues.

I find the decision of the majority to be troubling. I believe that the objections to the district court “amending” the rules was a valid matter to put before the courts. However, in the end, it is a matter normally left to the local court and circuit. It not only serves to reaffirm the view of many of a political agenda on the Court, but it suggests that the Ninth Circuit cannot police its own local rules on public access and viewing.

The decision was issued as a per curiam without an author.

Here is the opinion.

For the full story, click here and here and here.

19 thoughts on “Supreme Court Votes To Ban Telecasting of Same-Sex Trial”

  1. So we are dealing with Prop 8. This is also the 9th Circuit, remember ByBee former OLC to Cheney.

    “The Applicants here are defendant-intervenors in the law-suit. They object to the District Court’s order, arguing that the District Court violated a federal statute by promulgating the amendment to its local Rule without sufficient opportunity for notice and comment and that the public broadcast would violate their due process rights to a fair and impartial trial. Applicants seek a stay of the order pending the filing of petitions for writs of certiorari and mandamus.”

    I may have missed something but this does not in my mind say that it is over at this time. But that the rules/statues were not followed in conformity with the local court rules (or is that rues.)

    The per curium opines further that even the 9th Circuit could not have challenged it if it had been done correctly.

  2. If they can’t televise the proceedings, what are they hiding? Remember the Bush followers would say that if you are innocent, why should you worry about having your phones tapped? If the Supremes want to leave over televising the arguments, let them leave now.

  3. This ruling pretty much makes clear how the current Supreme Court is going to rule on the merits of this case against Prop 8, I think. If 5 justices aren’t even going to allow the public to hear the arguments at the lower level, what chance is there that they plan to hear arguments with open minds?

  4. “some have hinted that they might leave the bench”

    is this right? any links to publications or reports? seems like a perfect way to push justices off the court without having political motives.

  5. The Brad Blog is a 9primarily) voting rights blog that specializes in the brave new world of (unverifiable) electronic voting and they have an interesting article up on the integrity, or lack thereof, of the original vote. It’s worth a read. Considering the disparity between the exit polling and the final vote cert. (52-48) this difference merits another, official look. Not that an election has ever been corrupted or stolen in this country…

    “New Study Suggests CA’s 2008 Prop 8 Election Results Could be Fraudulent or In Error
    ‘Election Verification Exit Poll’ analysis show tallies of ‘Marriage Equality Ban’ off by 7.5%, as high as 17.7% in some L.A. precincts…” at:

    The study is at:

  6. “The vote broke down along ideological line with the five conservatives ruling that Chief U.S. District Judge Vaughn Walker, presiding over the trial, had not given the public enough time to comment on the telecasting before issuing his order.”

    This is a strange excuse, considering all the public comments that had already been submitted in favor of the telecasting, 138542 in favor, 32 opposed. How much time do we need?

  7. HK Those were true conservatives which does not include the present day group.

  8. I have read the decision. Regardless of whether the order permitting the broadcast of the proceedings violated the procedures for amending the rules, the Supreme Court should have summarily denied relief for failure of the petitioners to establish the likelihood of irreparable harm.

  9. “To all those oh so compliant Democrats who allowed the votes for Scalia, Roberts…”

    I could have sworn that we had 9 Justices on the Supreme Court. You should direct your anger at Justice Kennedy. Kennedy received unanimous bipartisan confirmation.

  10. To all those oh so compliant Democrats who allowed the votes for Scalia, Roberts, et. al. to proceed unhampered, we see the fruits of your cowardice. Only those ignorant of US history would deem a SCOTUS appointment a matter of Presidential preference. What is most evil about this current Court is that they cover their political partiality with only a very thin coat of judicial appearance.

  11. Does this really surprise you? The devils deeds are done in private and the works in the open. Do you per chance think the Sct made a deal with the Devil too?

    Pat whats your perspective on this?

Comments are closed.