In the various accounts of an incident last week, in which a deputy federal marshal at an Antonin Scalia speech in Hattiesburg, Miss., forced two reporters to erase their recordings of Scalia's remarks, the press has made great hay of two facts: The first is that the marshal's conduct was probably unconstitutional and illegal. The second is that the marshal was following Scalia's orders—even if those orders were unconstitutional or illegal and that neither she nor her boss believe she did anything wrong.
The interesting question is not really whether Scalia typically orders the Supreme Court's federal marshals—whose sole job is to provide security for the justices—to destroy reporters' tapes partway through a speech. Let's assume he does not. A more interesting question, as pointed out today by Bob Herbert, is how could Scalia have stood by and watched as reporters seated in the front row of a high-school auditorium had their equipment removed and their property destroyed? But the most interesting question of all, is who are these marshals, and who do they think they answer to?
Some of the oddest conversations ever to be had in the United States of America are the ones between the reporters and marshals in the U.S. Supreme Court building. They resemble nothing so much as those bizarre discussions you'd have with your mother about waiting half an hour between a hot dog and a swim—the ones that ended in, "Because I said so." I have had marshals in the court confiscate newspapers and books (including, once, Franz Kafka's The Trial) for no articulable or articulated reason. I've seen them order the removal of neck scarves from some reporters, and head scarves from others, and I've seen them remove sketch artists in T-shirts. I have seen them remove handicapped protesters crawling up the front steps of the court building, while refusing to cite any rule that prohibits such conduct. These same marshals who demand a press badge to enter the courtroom, then march up during oral argument and ask that you not display it on your jacket. Query them as to why you cannot display the same badge needed to enter the proceedings, and they tell you that 3-inch plastic badges distract the justices.
I once watched a marshal confiscate a rather substantial piece of penis-shaped headgear from an appellant in a 9th Circuit appeal, in a case about unconstitutional censorship by local authorities who denied him the right to campaign for public office in his very large penis costume. He was running under the name Dick Head. At least one judge later wondered under what authority his costume had been ... "apprehended" to quote the marshal. But by then it was too late.
The point here isn't that federal marshals are bad people. Most of them are quite nice. The point is that, unlike most federal and state officials, they simply don't believe they answer to any body of law—they are pretty certain that they answer only to the justices. Imagine a police force answerable only to the mayor or federal prosecutors answerable only to John Ashcroft. The marshals have gone from providing security to the justices to being the court's own private militia.
The real problem highlighted by events in Hattiesburg isn't just that Scalia is paranoid or that he'd oddly prefer shaky handwritten notes of his speeches to accurate recordings. The real problem is that there is a small army of state officials who don't seem to be playing by a rulebook. They simply act at the caprice of our judges, and this should not be tolerated.
Addendum, April 27, 2004: In the interest of fairness, I offer the following clarification. The federal marshals who guard the justices on the road are not the same entity as the Supreme Court police, who provide for security at the high court. In comparing the conduct of both, I did not mean to suggest that the court police would erase audiotapes. The fact that the court police are charged with confiscating scarves, newspapers, and enforcing other capricious judicial preferences, however, remains problematic.