Cali-Watch, Part 2

You know, I had a feeling SCOTUS wouldn’t allow the streaming of the Perry v. Schwarzenegger oral arguments. I write ‘had a feeling,’ but I STILL kind of thought they would allow it, since they would have had to work a little hard to invalidate the original ruling. Turns out, my feeling was right and the hard work was put in.

Yesterday SCOTUS entered a preliminary order blocking the broadcasting of the arguments on YouTube. You can read the full PC opinion over here and a better eval than I could ever give on the opinion here at

I think this ruling is bad. Obviously and admittedly I have at least three agendas at play here. First, I believe in unrestricted access to governmental process (government in the sunshine and all that), especially where, as here, access would not have come to the inconvenience or detriment of any of the parties. Can’t really “embarrass” the state like you can an individual citizen. And second, I am pro gay marriage, believe it to be a basic human/cultural/social right, and also believe it to be a right inherently extended to all US citizens, thus subject to protections of the Constitution. And third, I do not think the government has ANY business regulating what are inherently private matters among consenting adults.

Now, to the opinion. Why is it bad? Because it looks like a political move. And let me clarify that I don’t mean a judicial agenda. I would expect that all Judges and Justices have a judicial agenda – i.e., an approach that defines how they approach the law and a goal for the legacy they wish to leave behind. No, what I mean by ‘political moves’ are when the actions seem motivated by an attempt to reach out and shape the issues before they are actually in front of you or to take jurisdiction over issues that you normally wouldn’t touch. Don’t get me wrong, this is something that goes on regardless of philosophy.

And really? Rather than a political move, it could be a simple prophylactic measure, as there has been a bit of a hubbub about courts NOT wanting video broadcasts to become the way of the court. But still…

First, higher courts don’t generally tell lower courts how to decorate their offices, so to speak. Each court, whether state or federal, is almost certain to have its own local rules, which basically cover anything non-substantive that isn’t covered by the fed/state rules of procedure. Things like what documents need to be filed in summary judgment motions and how/when counsel may approach the bench, what counsel may wear (for real, many local court still had skirt reqs on the books for the ladies until very recently – if you know of some that still do, let me know), how cases may be set, etc. To use their “supervisory power” in a situation such as this one is unprecedented.

Lower courts typically are not a consortium-type setting – meaning that unlike appellate court, there is no panel and each judge has his/her own courtroom, personnel, and ground rules. And perhaps it is a show of respect or just a recognition that these rules have no bearing outside of the individual judge’s courtroom, but the higher courts don’t generally poke their noses in where the rules have absolutely no substantive impact on the citizenry. And since this trial is open to the public AND being heavily covered by the media, I don’t see how testimony integrity or chilling effect is a valid concern.



  1. mike w. said,

    January 14, 2010 at 12:38 pm

    Can’t really “embarrass” the state like you can an individual citizen.

    Oh but you can, which is EXACTLY why the government doesn’t want the proceedings broadcast.

  2. southern female lawyer said,

    January 14, 2010 at 12:53 pm

    Well, there is “embarrass” in the legal sense – i.e., make personal information about an individual public knowledge in such a manner as to possibly affect their 1st Am rights.

    And then there is “embarrass” in the sense that I think you mean – which is why I think it pretty disingenuous to even refer to witness integrity and chilling of free speech. Seems like that is kind of the point.

  3. January 14, 2010 at 2:56 pm

    I agree with your reasoning and I’m also very disappointed, but I have to admit, as a “trial lawyer,” the idea of having my court appearance videotaped and broadcasted on TV/internet kinda makes me want to vomit. Perhaps seasoned attorneys wouldn’t feel the same way though, as most do love the limelight.

  4. Chenoa said,

    January 14, 2010 at 8:30 pm

    A-fuckin’-men, sister.

    I dunno anything about these things, but it all seems like jack shit anyway until DOMA’s done away with. I spent the holidays with a lesbian couple who I know through school, and another couple that they are friends with. This other couple, both women are nurses (an RN and an NP). NP is getting a job at the VA, which has nil domestic partner benefits because it’s a federal job. So RN has to find a state of California job because they have some partner benefits.

    It’s just shit. M’Lady is looking for a job so we’re trying to decide what states we’d be willing to live in. She says there has to be skiing. I say, you have to be able to visit me in the hospital, I have to be able to adopt your bio-kids, and gosh-darnit, you better get a job at a school where I can get your health insurance once we get married, because I’ll probably be spending the next 10 years working for the feds (via Health Service Corps) to pay off my med school + future nursing school loans. (Assuming that happens of course.) WTH? It’s ridiculous that we have to consider these things…

    Sorry, apparently I need to rant. Also, UCs just increased their tuition by a third. California can suck it.

  5. Laci the Dog said,

    January 14, 2010 at 9:57 pm

    I find being in court usually is like watching paint dry: especially if I am the spectator. It ain’t like in the movies. Sometimes there’s an interesting case, but it seems pretty routine by now.

    So, why would anyone in their right mind want to watch court proceedings, except for something that interested them? As protolawyer pointed out, you get to watch another attorney goof up. Or sometimes put in a really great perfromance.

    Of course, it’s the difference between watching a primary school play and the RSC when you watch a really good lawyer at work.

    And those courtroom dramas. As the cops say: “we could solve a crime in 60 minutes if we wrote the script”.

  6. southern female lawyer said,

    January 14, 2010 at 10:03 pm

    Court is super tedious unless it is something cool. I like appellate work best, but there is nothing worse than watching a lawyer sink. I have been lucky enough to get to argue in front of the Sixth Circuit all by myself. Talk about sweaty palms… Still waiting for that opinion, by the way. The length of time plus the fact that they requested post-argument briefs are making me verrrrry nervous.

  7. southern female lawyer said,

    January 15, 2010 at 1:01 am

    Hey Chenoa! Rant away, because you know that shit SUCKS. I can’t imagine having to try to factor in all those things when trying to make basic life decisions. Kids and family seem like such basic issues, it is just painful when you can’t make it work. I was trying to do a second parent adoption, but it doesn’t look like I will be able to make it take in this part of the state. Am very glad to see you making happyfamily plans :).

  8. Laci the Dog said,

    January 15, 2010 at 1:40 pm

    Another point for hating the media (at least actual TV cameras) in the courtroom: I’ve got what looks like one heck of a bald spot on camera.

    I’m so vain that I think that song has to be about someone else, not me, because no one could sing a song like that about ME (“you’re so vain”).

    I did do really good arguning a case today though!

  9. southern female lawyer said,

    January 15, 2010 at 1:47 pm

    Yay! I, of course, don’t want cameras anywhere near me. It is bad enough reading transcripts. “Ummmmm….” Arggg.

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