Congress Watch: Senate Judiciary Committee Approves Measure To Televise Supreme Court Proceedings (S. 1945)

On the current debate to televise court proceedings, along bipartison lines, the Senate Judiciary Committee approves legislation (S. 1945), which would permit the televising of Supreme Court proceedings; the Senate will have a chance to consider the measure

Yesterday, February 9, 2012, the Senate Judiciary Committee approved a measure which provides for televising Supreme Court open sessions (those which the public already can observe in person). The one exception made by the bill would allow the proceedings not to be televised if a majority of the Justices decided that a party's due process rights would be violated. The bill proposes to add a new section to the U.S. Code (denominated as 28 U.S.C. § 678). The bill would not effect closed sessions or conferences of the Court. A hearing on the measure was held in December. See Congress Watch: Senate Committee Hearing On New Bill Permitting Televised Supreme Court Proceedings (S. 1945).

The Senate Judiciary Committee's final vote on S. 1945 was relatively bi-partisan:

Senators Voting For S. 1945:

  • Patrick Leahy (D-Vt)
  • Dick Durbin (D-Il )
  • Richard Blumenthal (D-Ct )
  • Al Franken (D-Minn)
  • Amy Klobuchar (D-Minn )
  • Charles Schumer (D-NY)
  • Herb Kohl (D-WI)
  • Sheldon Whitehouse (D-R.I.)
  • Chris Coons (D- Del)
  • Chuck Grassley (R- Ia )
  • John Cornyn (R- Tx )
Senators Voting Against S. 1945:

  • Dianne Feinstein (D-CA)
  • Orrin Hatch (R-UT)
  • Jon Kyl (R-AZ)
  • Jeff Sessions (R- Al )
  • Lindsay Graham (R- S.C.)
  • Michael Lee (R- Ut )
  • Tom Coburn (R-Ok )

Opponents of S. 1945 argued during the committee's discussion that the bill could violate the federal principle of separation of powers, fearing the measure involved one branch - Congress - requiring another branch - the Supreme Court - to televise proceedings as a normal course of action. They pointed specifically to a belief that at least five of the nine justices announced reservations, at one time or another, about open broadcast of court proceedings. As summarized by Senator Diane Feinstein (D-Calif.) her opposition to the bill reflected that “I don’t believe we should tell the Supreme Court what to do. We are separate branches of government.” Others expressed fear that the bill could encourage the Justices and counsel to play to the television audience rather than the business before them. In addition, some challenged whether the televising of proceedings would result in a better public understanding of the court and its role in government.

The Senators supporting S. 1945 prevailed with arguments that televising proceedings would not be a dramatic change in light of other measures that have been used to open up court sessions so far. Extending access to television coverage would be just another step in opening the government to public view and providing a transparency in the governing process. The measure attracted support from the committee's senior members, Committee Chair Democrat Richard Leahy and ranking minority member Republican Chuck Grassley. In addition, some Senators cited the upcoming oral argument on the constitutional challenge to the Patient Protection and Affordable Care Act as one of the first such proceeding that would benefit from S. 1945. Finally, proponents felt the bill was flexible. As one author of the bill, Senator Durbin noted, the justices could exclude any argument from being televised, through the due process exception or the court's normal procedures for closed sessions.

In the past, the Committee has considered legislation that would make all federal court proceedings subject to broadcast. One bill that would have done this, the "Sunshine in the Courtroom Act," passed the Judiciary Committee last year. See, e.g., Senate Judiciary Committee Approves Measures Authorizing Cameras In The Supreme Court And Other Federal Courts. Proposals to allow televised federal court proceedings have been considered by Congressional Committees since the 107th Congress.

Despite the bi-partisan support for the bill, its 11-7 vote vote in the Judiciary Committee, it remains uncertain whether the measure would pass the Senate and the House of Representatives. A similar House measure has been referred to the House Judiciary Committee, H.R. 3572, 112th Cong., 1st Sess. (2011), the Camera in the Courtroom Act of 2011. The House measure had not yet been considered by the committee. See also Remarks upon introduction, 157 Cong. Rec. E2192 (Dec. 6, 2011) (remarks of Rep. Connolly).

For more information on this issue, the Federal Evidence Review established a new Resource Page: Cameras And Electronic Devices In The Federal Courtroom Resource Page. This resource provides access to a library of documents including judicial conference policies, judicial guidelines, legislation and hearings, cases and other articles of interest.

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