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SCOTUS Scuttles Prop 8 Video Coverage; The History Behind The Denial

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images5thumbnail1.thumbnail1As you may have heard (See here and here), the Supreme Court has entered a last minute stay to put a hold on the video feed of the seminal Prop 8 trial in the Norther District of California (NDCA) to select other Federal courthouses in the country as well as the delayed release of video clips of the proceedings via YouTube.

This is the full text of the order issued by the Supremes:

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held. Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court. To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

Justice Breyer, dissenting.

I agree with the Court that further consideration is warranted, and I am pleased that the stay is time limited. However, I would undertake that consideration without a temporary stay in place. This stay prohibits the transmission of proceedings to other federal courthouses. In my view, the Court’s standard for granting a stay is not met. See Conkright v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1–2) (Ginsburg, J., in chambers). In particular, the papers filed, in my view, do not show a likelihood of “irreparable harm.” With respect, I dissent.

This is, to say the least, a disappointing ruling. It had been my guess that Anthony Kennedy would field the issue, which went directly to him as the hot judge for emergency matters from the 9th Circuit, and see it as a matter within the discretion of the 9 Circuit and let them make the call, which they had done in favor of video dissemination. For those not aware, this idea of video from the courtroom was not germinated from the Prop 8 trial, even though that has been the focal point. Instead, the pilot program was the brainchild of the 9th circuit Judicial Conference, as described in this LA Times article from late last year:

Federal courts in California and eight other Western states will allow video camera coverage of civil proceedings in an experiment aimed at increasing public understanding of the work of the courts, the chief judge of the U.S. 9th Circuit Court of Appeals said Thursday.

The decision by the court’s judicial council, headed by Chief Judge Alex Kozinski, is in response to recommendations made to the court two years ago and ends a 1996 ban on the taking of photographs or transmitting of radio or video broadcasts.

“We hope that being able to see and hear what transpires in the courtroom will lead to a Read more →

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Revenge of Article III

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We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

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