Why Supreme Court Oral Arguments Will Never Be Televised

The recent controversy over Justice’s Scalia’s comments during the oral argument on affirmative action explain why the Justices will never agree to open arguments for television.  (I’m not saying that’s a good thing–I’m saying this is just true.)

Justice Scalia was only summarizing what the amicus brief said about mismatch theory.  Now did he do this in the most artful or sensitive way?  Definitely not. But it’s not as if he was writing an opinion–he was asking a question.  The subsequent criticism of him is, in my view, unfair.

Of course, the Justices are no different from politicians in thinking that the media sometimes distorts their views.  The difference is that they are in a position to block television in their Court, and they will continue to do so.

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7 Responses

  1. Joe says:

    He had loads of things to “summarize” but picked this and phrased it in a certain way. The “fairness” of the “criticism” depends on the nature of the criticism and reply that kinda sounds like it (is this unfair? http://balkin.blogspot.com/2015/12/lesser-schools.html) and and an analysis of what he said. Your say-so here makes me say: undetermined.

    But, what exactly does television add here except an apparent petty response to criticism which in this country is allowed to be “unfair”? In fact, closing off television (and in various cases even audio, leading to people to not be quite sure what he said in various public forums & thus we are left with inexact and at times misleading third party commentaries) can lead to more criticism, unfair and otherwise. We already have both the text and audio. The MEDIA transmitted and discussed it.

    So, yes, we are left with “we have the raw power” (their right to do so has been greatly disputed, including by C-SPAN — Brian Lamb, e.g., is not exactly some leftie & he has opposed its reasonableness) pettiness. We do get various justices televised (and criticized, at times unfairly, when doing so) in various other avenues, at times defending their policy here. Alanis Morissette is on the phone.

    https://www.youtube.com/watch?v=H6Ts8mheu8c

  2. Shag from Brookline says:

    It’s pretty obvious why Scalia did not do this in the most artful or sensitive way. He wasn’t very subtle.

    • Brett Bellmore says:

      It’s pretty obvious, alright: He was talking to legal professionals who didn’t have to be coddled.

      • Shag from Brookline says:

        Brett, you don’t have any idea how the game is played. Scalia has his groupies outside of professionals. Apparently snide remarks go over your pate. Scalia provided coming attractions via an opinion to follow. It’s political theatre. You were probably out getting popcorn.

  3. Joe says:

    Some “subsequent criticism” substantively examined what he said:

    http://www.lawyersgunsmoneyblog.com/2015/12/on-mismatch-theory

    Scalia also didn’t “only summarize” or “ask a question” — he also stated an opinion that he “just not impressed by the fact” that UT might have fewer students of a certain type. He suggested maybe there should be fewer and then stated what “turns out” to be true.

    Many disputed such a position and challenged again the thing he decided to pick out from loads of briefs. Was this always done in the most sensitive and artful way? No. Perhaps, unlike legal professionals, justices need to be coddled.

    Finally, doubtful he was merely talking to “legal professionals” here, especially if that means the George W. Bush solicitor general defending UT. Oral statements from the bench tend to have a wider audience; at least, likely his fellow justices too.

  4. Shag from Brookline says:

    Comments and questions during orals by a Justice may be a means of addressing other Justices, perhaps directly as well as indirectly, even in a pre-emptive manner. I don’t anticipate polite “open” debates between the Justices in this manner. But a Justice may have a strategy during orals to set the stage for discussion outside of the Court by pundits who may favor that Justice’s comment or question to simmer before the Justices get together to decide the case.

    Delayed audios have been around for a short time. At some point live audios may be permitted. And some day delayed TV, to be followed by live TV. Maybe “never” to TV during my – or Gerard’s – lifetime, but down the road …. Of course deliberations of Justices should not be open, whether by audio or TV; that’s more serious than orals. As to TV for orals, the only thing the Justices have to fear are themselves.

  5. Joe says:

    Canada allows television in their Supreme Court. But, you know, they are so polite up there.