I'm having Bush v. Gore déjà vu. Late Wednesday, the Supreme Court blocked video streaming of the California gay marriage trial. In this unusual (unprecedented?) order, meddling in the governance of the lower courts, are all the hallmarks of the court's worst self-inflicted bruise. It's a smaller bruise this time around, granted. But still.
Let's count the parallels. In barring video of Perry v. Schwarzenegger, the court split 5-4, conservatives vs. liberals. The question addressed—whether the California district court properly amended its broadcasting rule—has nothing to do with ideological politics, on its face. But because the trial is about same-sex marriage, it's all about the politics roiling underneath. And as in Bush v. Gore, the majority reached out and grabbed this appeal when no one expected it to. There's a question about whether the court even has the authority to act. The majority claims to base its decision in legal technicalities and says its decision is limited to this case only. The opinion, signed by no one, downplays the significance of all of this.
Hmm. What did I miss? On the Volokh Conspiracy, Orin Kerr has déjà vu, too, and his own list of similarities.
The majority (in case you haven't guessed, Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, and Alito) sounds cranky from the beginning, as Lyle Denniston at Scotusblog points out. The first paragraph of the order closes with a snap: "Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves." That's the official line throughout: This is all about procedural regularity. Never mind that the 9th Circuit, which makes the rules for the federal trial courts on the West Coast, had approved a pilot project in broadcasting and clearly has the authority to do so. Never mind that the majority's claim of a technical violation of rulemaking is perilously thin, no matter how many times it bandies about the phrase "likely violation of a federal statute."
The majority accuses Judge Walker, who is trying Perry, and the 9th Circuit of moving "in haste" to broadcast this particular trial. Held against the videotaping plan is Walker's statement that Perry was "an ideal candidate for consideration" when the 9th Circuit decided to experiment with video, in light of the intense public interest in the trial. This is not a legitimate rationale in the majority's view. Those crazy California judges. What was Walker smoking, making a trial of widespread public interest more accessible to the public?
The problem, the majority says, is that in his haste, Judge Walker changed a federal rule to allow for the broadcast, without giving sufficient notice to the parties and witnesses or enough opportunity for public comment. Ohhh, I thought when I read this, they've nailed him on a technicality. Except they haven't. Judge Walker told the parties he was considering videotaping back in September. And when he amended the rules of his court in late December, he did provide for notice and comment, between New Year's Eve and Jan. 8. Not enough time? Nobody knew to comment? Actually, the court received megabytes of comments! 138,542 pro and 32 con, to be precise. Yet in the majority's view, this is inadequate, even though the only standard the justices fish out for how much notice and comment suffices when a district court amends its own rules is the vague "appropriate."
Also, weirdly, all of this fuss is about Judge Walker's decision—approved by 9th Circuit Judge Alex Kozinski—to stream live video to five other courthouses across the country, while forbidding any rebroadcast. Judge Walker had planned to also post the video to YouTube with a time delay, but that process hadn't been sorted out yet (because of technical difficulties), so the YouTube idea isn't ready for review. The Supreme Court has surely killed it, but the formal disconnect means that the court came down from on high and interrupted its own busy week to block people from watching the gay marriage trial in five courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena. Really? What would have been the harm in as many press and interested observers who could have crammed into those courthouses watching a feed, when there are already hundreds of them at the trial? What's the Supreme Court afraid of—a love-in?
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.
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