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.