In his dissent, Judge Stephen Breyer expresses much puzzlement. (Joining him are Justices Sotomayor, Ginsburg, and Stevens.) Breyer asks a basic question: What is the legal source of the court's authority to tell a district court how to change its own rules? Breyer lists the judicial councils with the power to set rules for this California trial court. The Supreme Court isn't on it. The justices haven't interfered with the Circuit Judicial Councils that preside over such rule-making for 80 years—that is, since their creation. Breyer can't find any precedent for what the court is doing. He calls it "inadvisable" and says the court is micromanaging. He is being polite. His most pointed dig is to quote Scalia saying, in a previous case, "I do not see the basis for any direct authority to supervise lower courts." That was then, apparently.
What is animating the majority here? The conservative justices express a lot of concern that witnesses who oppose gay marriage will be harassed if their testimony shows up on TV. As I mentioned the other day, a Heritage Foundation report documents boycotting and blacklisting and one death threat against some people who campaigned for Prop. 8, California's gay marriage ban. But why is the remedy this incredibly heavy-handed move to block broadcasting? The Prop. 8 witnesses are volunteers. During the campaign, they went on TV and toured the state, Breyer points out. And if they argued individually that the broadcast would cause them trouble, Judge Walker could have addressed that. He promised to watch over the taping carefully, "to stop it [if] it proves to be a problem, if it proves to be a distraction, [or] if it proves to create problems with witnesses." Judge Kozinski also said he would pay close attention, in a letter to the Judicial Conference of the United States (which disapproves of broadcasting and still let Walker go ahead).
But the Supreme Court's conservative majority often treats the 9th Circuit as a renegade, so the assurances of these veteran judges didn't do the trick. Nor was the majority swayed by the peaceful record of 42 state courts and two federal district courts that allow broadcasting of civil trials without juries, like Perry. Breyer brings up the value of "the public's interest in observing trial proceedings to learn about this case and about how courts work." But to the majority, the public's interest is exactly the reason this trial shouldn't be broadcast. "This case, too, involves issues subject to intense debate in our society," the majority states. And one sentence later: "This case is therefore not a good one for a pilot program."
That's a fundamental clash over public access to the courts in the digital era. On this, Judge Kozinksi has the best if not the last word. In his letter this week to the Judicial Conference, he wrote, "Technology has changed the way trials are conducted and reported. … Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology."
The fight over videotaping this trial shouldn't be overwhelming the real battle, about whether same-sex couples have a constitutional right to marry. It should have been a side skirmish about one court's experiment—an experiment that's not even particularly innovative. But the Supreme Court has made it a huge deal, by stepping in, with big clomping boots, where no one imagined it would.
None of this bodes well for the main show. The power lawyers for the Perry plaintiffs, Ted Olson and David Boies, argued in filing this high-stakes, risky suit that they can count five votes for same-sex marriage on the Supreme Court because of past decisions by Justice Kennedy, whom they read as sympathetic. But if Kennedy is ready to block cameras from recording the stories of gay couples, at the behest of their opponents, how sympathetic is he? Would he really take the enormous step of striking down 40 state laws across the country that bar same-sex couples from the altar? This, like the Perry trial, it is hard to see.