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 scotusblog.com.
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.