Posted Jul 01, 2010 11:44 pm CDT
Mike Sacks is guest-blogging at ABAJournal.com during his unique U.S. Supreme Court project, First One @ One First, which is to be first in line for politically salient arguments at the high court this term.
Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.
“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”
Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.
But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.
For court watchers, Monday long promised great drama. Not only would the justices be announcing the term’s most contentious cases, but also Justice John Paul Stevens would be marking the final day of his thirty-five year career. But on Sunday afternoon the news broke that Justice Ruth Bader Ginsburg’s husband, legendary tax lawyer Marty Ginsburg, died only days after their 56th wedding anniversary.
Ginsburg’s frail physicality and soft voice often mask the intellectual and emotional strength that made her a feminist icon in the law long before she became a justice and propelled her forward as she battled cancer once seated on the high court. But no one would have thought her weak had she absented herself from work the day after she lost her life’s partner.
So when the gavel banged at 10 a.m. and she emerged from behind the red curtains to take her seat at the bench, jaws dropped and eyes welled.
Whether she was there out of strict professionalism, sentiment for Justice Stevens, desire to read her opinion in Christian Legal Society v. Martinez (PDF), deference to what her husband would have wanted, or her own steely determination to force life forward in the most trying of times, we may never know.
Chief Justice John G. Roberts Jr. began the session with a statement (PDF) honoring Marty Ginsburg. Justice Ginsburg held her usually-bowed head high as the chief spoke. She stared wistfully forward toward her own memories, her composure briefly breaking at the mention of her first meeting her husband on a blind date in 1951.
Justice Ginsburg’s display of grace and courage before a few hundred onlookers moved most everyone, including Justice Antonin Scalia, a long-time friend of the Ginsburgs, who wiped tears from his eyes at the close of Roberts’ statement. Concerned, Justice Stevens turned his head to check on Ginsburg, who would become the oldest sitting justice at the end of the hour. Stevens must not have been surprised to find his colleague appearing perfectly self-possessed as the chief turned to the day’s decisions.
And on a dime, the court went from collegiality to conflict. Four decisions were announced, all by 5-4 votes along ideological lines, with Justice Anthony M. Kennedy siding with the conservatives on three of the cases. In all three, dissents were read from the bench. Justice Breyer read two, Justice Stevens read one, doubling their own—and the Court’s—total dissents from the bench for the term.
But the decisions did not cause all heat and no light. In reading their opinions and dissents, the justices make an effort to summarize their positions for the public to understand. But the “public” in these instances goes no further than the representative sample seated inside the court. What a shame, then, that on Monday morning Justice Samuel A. Alito’s opinion in McDonald v. City of Chicago (PDF) could not be seen or heard beyond the walls of the courtroom.
In explaining the court’s decision to extend the individual right to keep and bear arms for self defense to state and local governments, Justice Alito delivered an unusually accessible and lucid constitutional law lecture on the Fourteenth Amendment’s Due Process and Privileges or Immunities Clauses. Whether they agreed or disagreed with his conclusion, lawyers and laypeople inside the court sat rapt as Alito spoke, largely without looking at his notes.
Compare this opportunity to hear a short but compelling summary—and a passionate dissent—of a landmark decision coming straight from the justice’s mouth to spending hours consuming a 200-page decision that not even law professors have yet finished reading.
And then it came time for Justice Stevens’ farewell. The chief justice produced a letter (PDF) beginning, “Dear John,” signed by eight of the justices who for the prior hour had been waging scorched-earth intellectual warfare. “The bonds of friendship that we have forged,” concluded the letter, “extend beyond our common endeavor.”
Justice Stevens then read his letter (PDF) to the court, jokingly introduced by Roberts as a “rebuttal.” After starting, “Dear Colleagues,” Stevens went off script to proudly note that he wasn’t beginning, “Dear Brethren,” as he would have when he first arrived on the bench in 1975. His voice broke twice in reading his two-paragraph note.
No one likes to see a grown man fight back tears, let alone a great-grandfather. Upon Stevens’ completion, Chief Justice Roberts, senior to Stevens only in title, paused to take a deep breath and collect his emotions before adjourning the court for its summer recess.
To be sure, the court will release its audio and interested people will eventually be able to listen to what a select few of us heard on Monday. But they will not be able to see what we saw. They will not see Justice Ginsburg’s dramatic entrance. They will not see Alito’s easy and engaged delivery. They will not see Stephen G. Breyer’s exasperated gesticulation. And they will not see Justice Stevens’ final exit—including the chief justice’s touching suspension of protocol, saying “after you” to allow the senior associate justice to break rank and lead the chief out of the court.
Instead, the public gets to see an interminable, repetitive confirmation hearing. We watch for hours hoping that in the expected absence of substance, we will at least be treated to some stunning admission or an embarrassing Freudian slip. We hear the senators casting the justices as evil or angelic, simplifying the court’s opinions for partisan gain.
In a way, the confirmation hearings do betray some truths. Law is politics. It can be no other when our country’s bedrock law—the Constitution—was borne out of political compromise. But the hearings show little to no engagement between liberals and conservatives over their jurisprudential and political disagreements. There are only talking points, no reasoned judgments. And it seems as though we have all taken their cues, replicating Congress’s unlistening rancor in our larger political discourse. Or perhaps they have taken ours.
Televising the court can help break this feedback loop. Whereas Congressional footage must be manipulated and condensed to provide anything resembling an engaging teaching moment, the court’s fast-paced arguments and crisp opinion announcements provide surefire entertainment and educational value. Although the justices often break down 5-4 in their final and most contentious cases of the term, they do so with exceedingly thorough explanations. And whether or not those explanations are pretextual attempts to hide the justices’ political motivations, they are done with a level of close collegiality, commitment to candor, and respect for the other—all strikingly evident on Monday morning—that seems so sorely lacking in Congress, over the airwaves, and on cable television. The American people deserve to see these qualities through exposure to the justices’ examples. And they shouldn’t have to come to Washington, D.C., to camp out all night to do so.
After Elena Kagan fielded more than 500 questions from the senators over two very long days, Senator Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, gave her the “good news that this is in all likelihood the last time that you will ever have to be in a public hearing.” Broadly, that’s not entirely true: although she’ll never be on the receiving end of a governmental grilling ever again, she will for the next generation preside over hundreds of public hearings at the Supreme Court.
In stark contrast to Kagan’s testimony before the Senate Judiciary Committee, where she said nothing for the ages, her countless proclamations from the bench for years to come will be of lasting, historical significance. How unjust it will be that Americans may only ever see the former if Kagan’s position on cameras in the courtroom fails to prevail over her colleagues.