How the Supreme Court managed to insult both the law and the public.

How the Supreme Court managed to insult both the law and the public.

How the Supreme Court managed to insult both the law and the public.

The law, lawyers, and the court.
Jan. 16 2010 7:07 AM

Public Enemies

How the Supreme Court managed to insult both the law and the public.

Harlee Demeerleer cheers in support of gay marriage on the steps of the State Capitol November 22, 2008.
Gay marriage supporters

There are lots of interesting ways to frame the gay-marriage trial taking place this week in San Francisco: It's either too early or too late. It's either a piece of Vegas-style showboating by former Bush v. Gore adversaries David Boies and Theodore Olson or a noble quest for marital equality in America. But perhaps the most potent frame casts it as a grand battle between elitist, anti-democratic judges on the one hand and the will of ordinary Americans on the other. That whole story line suffered a major hit this week when the anti-gay-marriage forces waged an epic fight to prevent the trial from being broadcast to ordinary Americans.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Perry v. Schwarzenegger promises to be a sprawling exploration of every aspect of the fight over gay marriage. But beneath all of the social-science testimony and constitutional nitpicking lies a deep institutional anxiety about whether California's voters or unelected federal judges should be the arbiters of what marriage means. Opponents of liberal jurisprudence, and their pushy push to legalize gay marriage, have long argued against allowing unelected, sherry-sipping judges to substitute their values for those of the American people. As an argument, this has legs. It's populist. It's catchy. But it's hard to take it seriously when the same people making it also come out strongly against letting the people watch trials.

The legal question for the court is whether Proposition 8—the California ballot initiative, passed in November 2008, that limited marriage to one man and one woman (overturning the state Supreme Court in the process)—is unconstitutional. As testimony has proven, this inquiry is not a narrow or technical one. That's why Judge Vaughn Walker (a George H.W. Bush appointee, for those keeping score) decided to broadcast the trial in several courthouses around the country and on a delayed basis on YouTube. On Monday, just minutes before the trial opened, the U.S. Supreme Court responded to an appeal from proponents of the gay-marriage ban and stopped any broadcasting for at least several days while they mulled the problem.


Then, on Wednesday night, in an unsigned per curiam order, the high court voted 5-4 (conservatives-liberals) to stay the trial broadcast, finding that "the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting." Now, asking the U.S. Supreme Court—which bans cameras in its own courtroom—to make a ruling on broadcasting trials is a bit like asking Tiger Woods to opine on adultery. But even beyond the Escher-staircase-to-oblivion logic of the opinion itself, everything about the Supreme Court's decision to stay the broadcast (and the Proposition 8 camp's request to black out the trial in the first place) betrays a deep ambivalence about the same humble American voter whose very rights the court purports to be defending.

Alex Kozinski, chief judge of the United States Court of Appeals for the 9th Circuit, had announced in December the decision to allow some TV coverage of civil trials, describing the policy as an "experiment" to "find the right balance between the public's right to access to the courts and the parties' right to a fair and dignified proceeding." Broadcasting legal proceedings presents a tricky problem, especially in criminal trials. But this isn't about outing gang members.

Justice Antonin Scalia, for example, argues that the broadcasting of trials is "making entertainment out of other people's legal problems." Yet proponents of cameras in the courts might contend that you can't really ask citizens to participate meaningfully in deciding critical matters of law if you secretly suspect they aren't smart enough to watch and understand legal proceedings in the first place.

When Walker announced that he'd allow portions of Perry v. Schwarzenegger to be shown on a smattering of televisions in courthouses around the country, and on YouTube, the fear of the shrieking, marauding villagers became almost palpable. Oddly enough, the Supreme Court determined that because Perry is a "high profile" case, there is extra reason to turn out the lights. As it explains in its order: "This case, too, involves issues subject to intense debate in our society" and it "is therefore not a good one for a pilot program." So, um, we the people are only fit to watch low-profile, boring cases? Or, as professor Barry Friedman put it today in the Los Angeles Times, "What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?"


The absurdity of the court's meaningless distinction between broadcasting high-profile vs. low-profile cases is highlighted by the Supreme Court's own broadcasting policy: The court only provides same-day audio-casting of its own oral arguments that are of major public importance, or, as the court puts it, if there is a "heightened public interest" in the case. So, to be perfectly clear: The court only provides same-day broadcast in its most contentious, hot-button cases, but when the 9th Circuit attempts to do the same, the justices run away shrieking.

Then there's the part in the court's Wednesday order in which the five justices in the majority assert that the lower court failed to follow its own rules by not "giving appropriate public notice and an opportunity for comment," as required by federal law. As my colleague Emily Bazelon pointed out, Judge Walker sought and received ample public comment on the proposal to broadcast the trial. (There were 138,542 votes in favor and 32 against.) The Supreme Court is unable to tell us why this is insufficient. But beyond that, if the fatal flaw in Walker's broadcast plan was that he didn't allow enough time for the public to play a role, how can the cure possibly be to cut the public out of the trial? Deference to the will of the public either means something or doesn't. If this trial is truly about giving voters who say "aye" to a ballot initiative what they want, why are the voters suddenly the enemy?

Proposition 8's supporters say that broadcasting the gay-marriage trial would allow the masses—again, those same masses whose votes on the ballot initiative are at stake here—to terrorize and threaten their trial witnesses. Thus Charles Cooper, a lawyer defending the proposition, argued that although this is a civil, not criminal, trial, witnesses could suffer "hostilities and harms" at the hands of their opponents. The Supreme Court majority agreed.

To be sure, there have been claims that some of the witnesses defending Proposition 8 have been harassed and embarrassed. But some of them are paid experts, and some have appeared on television. All will be named and quoted in the newspaper, radio, live-blogging, and Twittering that has poured out of Walker's courtroom. And the law provides that any witness who feels particularly vulnerable about television broadcast has recourse to judicial protections. But the Supreme Court's wholesale acceptance of the argument that every last one of these witnesses is a victim-in-waiting is daft—as well as bristling with hostility toward the American public.

Putting aside the merits of the gay-marriage trial itself, in this new decision the Supreme Court has revealed something profound about its view of the American people. One cannot argue that the majority of California citizens wanted to ban gay marriage and should be respected while also claiming that supporters of such an initiative are a fragile, oppressed minority who must testify in dark sunglasses in dark rooms. Opponents of gay marriage can't have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work. In the campaign over this ballot initiative, both sides spent close to $74 million on competing ads to "educate" voters about gay marriage. In many ways, broadcast and the masses caused Proposition 8 itself. It's awfully late now to claim that there's no place for broadcast television in this fight.