Congress Watch: Effort To Consider Senate Bill To Televise Supreme Court Proceedings Denied

Last week, Senate debate turned briefly to the issue of televising Supreme Court proceedings in advance of the three days of oral arguments this week on the Patient Protection and Affordable Care Act; while the request from the Senate Majority Whip for unanimous consent to proceed to Senate debate on the legislation (S. 1945) was denied, the action shows continuing congressional interest on this issue

We recently noted that the Supreme Court had announced it would release expedited, same-day audio and transcripts of the oral arguments set for this this week on the cases challenging the constitutionality of the Patient Protection and Affordable Care Act. See Supreme Court Watch: Announcing Same-Day Audio Release Of Health Care Arguments. Starting on Monday, March 26, 2012, the Court will hear three days of argument, spanning a total of six hours. Apart from the merits of the constitutional issues in the cases before the Court, one question is whether there will be increased focus on the effort to televise Supreme Court proceedings.

Last week, on March 21, 2012, Senator Dick Durbin (D-Ill), who is also the Senate Majority Whip, tried to have the Senate consider the Televising Supreme Court Proceedings Act of 2011, S. 1945, 112th Cong., 1st Sess. (2011). He introduced S. 1945 along with Senator Charles E. Grassley (R-IA) on December 5, 2011. See 157 Cong. Rec. S8186 (Dec. 5, 2011) (Remarks of Sen. Durbin). A hearing was held on December 6, 2011. See Congress Watch: Senate Committee Hearing On New Bill Permitting Televised Supreme Court Proceedings (S. 1945). The Senate Judiciary Committee reported the measure out of committee on February 13, 2012. See 158 Cong. Rec. S567 (Feb. 13, 2012); see also Congress Watch: Senate Judiciary Committee Approves Measure To Televise Supreme Court Proceedings (S. 1945).

In November 2011, letters were sent to the Supreme Court urging televised proceedings on the oral argument, including by Senator Charles E. Grassley (R-IA) and CSPAN. Senator Durbin reported that the letter he sent to Chief Justice John G. Roberts, Jr., along with Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) asked that the argument be televised was reported to last week. As Senator Durbin noted:

Chief Justice Roberts responded to our request last week, and it sounds as though he sent the same letter to Senator GRASSLEY. The Chief Justice informed us that the Supreme Court has respectfully declined to televise the health care arguments, but that the Court would graciously offer an alternative.

Here is the alternative: The Court will post the audio recordings and unofficial transcripts to the Court’s Web site a few hours after the arguments are over.
158 Cong. Rec. S1919-1921 (March 21, 2012) (remarks of Sen. Durbin), Senator Durbin did not find the proposed alternative acceptable:

For that gesture, I guess we can congratulate the U.S. Supreme Court for entering the radio age. America entered the radio age 90 years ago. The Supreme Court is catching up with a delayed broadcast-audio only. But I think America deserves better.

The time has long since come for the Supreme Court—for the highest Court in our land—to open its doors and allow the American people to finally observe its proceedings.
158 Cong. Rec. S1920 (March 21, 2012). He then sought unanimous consent for the Senate to proceed to consideration of his legislation, S. 1945. Senator Jeff Sessions (R-Ala.) opposed the request. In his view:

This is a matter that the Senate and the Congress has considered for quite a number of years. It has not decided to take this step to direct a coequal branch of government on how to conduct their business, and I don’t think we should. So I think it would be inappropriate to pass this on a UC [unanimous consent] without a full debate and discussion and a full vote on it.
158 Cong. Rec. S1921 (March 21, 2012). He also noted opposition to the legislation from members of the Supreme Court and the goal of avoiding unnecessary constitutional issues if possible.

A similar measure to televise Supreme Court proceedings has been in introduced in the House of Representatives, H.R. 3572, 112th Cong., 1st Sess. (2011), by Representative Gerald E. “Gerry” Connolly (D-VA); see also 157 Cong. Rec. E2192 (Dec. 6, 2011) (Remarks of Rep. Connolly); 158 Cong. Rec. H738-739 (Feb. 15, 2012) (Remarks of Rep. Connolly urging support for measure).

Congressional and other interest is growing for allowing television cameras in the Supreme Court. It seems best to allow the Supreme Court to decide this issue. However, given the heightened attention, it remains to be seen whether the historic oral arguments this week will add to the debate and interest in televised proceedings.

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