The Supreme Court’s conservatives showed their activist side last week when they stopped a federal judge from allowing limited Internet streaming of California’s same-sex marriage trial to several other courthouses in the country. Besides its extraordinary nature, the intervention also shows the habit of the Roberts Court majority of viewing policy-laden factual disputes through an ideological lens.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
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