Supreme Court Stays Video Streaming

[Brown]

As many now know, the US Supreme Court issued a stay of video streaming of a trial in California pertaining to gay marriage. Read the document here.

After reading this, I had a strong feeling of deja vu. It reminded me a lot of the abortion decisions, Bush v. Gore. (The Bush v. Gore decisions [note the intentional plural] were not about abortions; they were abortions.)

As in Bush, the opinion was anonymous (but I have a strong suspicion as to who was the primary author, as I'll discuss below.), although it was the so-called "conservative" bloc acting here. As in Bush, at issue was a stay. Stays are supposed to be hard to get, and typically require a much more significant evidentiary basis, but the Supreme Court issued them anyway. As in Bush, the Court's authority to act was tenuous at best. As in Bush, the Court seemed to go out of its way to say that its ruling was limited to the distinct facts of the case.

I wasn't the only one who saw similarities. Read Emily Bazelon's column.

Some see the hand of Justice Kennedy in this opinion, but I see the hand of Justice Scalia more than any other. Why? First, there is quite a bit of discussion about Administrative Law, which is Justice Scalia's area of particular expertise. Second, dissenting Justice Breyer makes reference to one--and only one--opinion by a sitting Supreme Court Justice: "Cf. Bank of Nova Scotia v. United States, 487 U. S. 250, 264 (1988) (SCALIA, J., concurring) ('I do not see the basis for any direct authority to supervise lower courts')." The implication may be that Justice Scalia is departing from his own touted principle in this case. And third, Justice Scalia's remarks in the 1996 Romer case show that he is quite opposed to a perceived plan to have certain sexual immorality become socially accepted, which is what the trial is largely about.

 

[NobleXenon54]

Reading the transcripts for this case, the defendants of Prop 8 are getting their arguments repeatedly destroyed. I can only imagine that when this case gets to the Supreme Court, they will dissent in favor of the bigots with the same stupid arguments. Blocking a public broadcast of these arguments getting refuted will make the Supreme Court look a lot less stupid and hateful when they dissent.

 

[quixotecoyote]

Yeah, if the Supreme Court is going to be this wacky over video streaming, I'd pull the suit immediately and sit on it until the Court gets less wacky.

 

[Beerina]

I'm confused. I thought it was up to the local judge whether to allow video or not in hishers courtroom? Is the SC coming out of the blue to disallow it when the local judge wants it? Or just saying the local judge's denial of it is fine?

 

[Brown]

I'm confused. I thought it was up to the local judge whether to allow video or not in hishers courtroom? Is the SC coming out of the blue to disallow it when the local judge wants it? Or just saying the local judge's denial of it is fine?

Your confusion is natural, because the case is very complicated.

A bench trial (that is, a trial without a jury, in which the judge serves both as fact-finder and legal arbiter) was scheduled to begin in January of 2010. The judge who would hear the case was Judge Walker. (Judge Walker was appointed to the bench by Little George W. Bush, but that's not really relevant.) In September of 2009, Judge Walker floated the idea of videotaping the trial, for the purpose of rebroadcast. (There was some talk about delayed rebroadcast on YouTube, but the current rebroadcast was limited to five courthouses in the Western USA.) Well, that seemed to fit in well with what the Ninth Circuit (the court that oversees Judge Walker's court) was thinking. The Ninth Circuit decided to look at the possibility of a rebroadcast pilot program. (The Ninth Circuit had been looking at this idea for more than a decade.)

By the way, the principal litigants in the case thought rebroadcast was a swell idea.

On December 17, 2009, the Ninth Circuit Judicial Council approved the pilot program. Current local rules (the rules that govern local practices in particular courts) would have to be amended, so that was done. Judge Walker changed his local rules.

The public was given a chance to comment on the pilot program. Now, there is some question as to whether the time period for commenting was reasonable, what with the Christmas and New Years holidays. Typically, the number of comments for a local rule change would be a handful, perhaps a few hundred for a really sticky rule. Judge Walker received 138,574 comments. All but 32 favored the transmission of the trial.

I know, that all sounds pretty simple so far. But the complicated part is coming.

A group of intervenors (people who were neither suing nor sued, but who chose to become parties to the lawsuit to defend Proposition 8 because California was not going to defend it) objected to the change in the local rules, saying that there had not been enough time for public comment.

The US Supreme Court agreed, saying Judge Walker had acted "in haste."

Now, the Supreme Court, by its own rules, is not merely entitled to step in and put a halt to what Judge Walker was planning to do, unless there was a showing of "irreparable harm." And (said the five-member majority), there was plenty of irreparable harm here. My goodness, was there irreparable harm, so much irreparable harm that you could hardly keep track of it:

Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from those broadcasts. The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. ... Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. ... These concerns are not diminished by the fact that some of applicants' witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one's testimony broadcast throughout the country.

The ones who are objecting here and who claim to live in fear (according to diverse accounts) are the folks who oppose same-sex marriage. The people who are fighting FOR same-sex marriage do not seem to be camera-shy, and do not seem to be intimidated by the opponents who call for their deaths (according to Scripture, so that makes it all right). No, it is the ones who oppose same-sex marriage that are the oppressed ones here, who live in fear that they or their witnesses will be tormented if their faces are rebroadcast to the other courthouses. (Curiously, the witnesses themselves apparently did not think it important to express their fears to Judge Walker--or for that matter, to the Supreme Court. From Justice Breyer's dissenting opinon: "But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court's order.")

The witnesses' and participants' identities are all, of course, going to be a matter of public record (if they aren't already), rebroadcast or no rebroadcast. This is, after all, a public trial. And many of these cowards, I mean, individuals have already made a number of public pronouncements on the issue of same-sex marriage.

Curiously, if there HAD been sufficient time for comment (say, 30 days instead of two weeks or so--which doesn't count the YEARS that the idea had been floating around the Ninth Circuit or the months that it had been bandied about in Judge Walker's public-accessible courtroom in particular), then the local rules would probably have been valid and the cowards wouldn't have a legal basis for their gripe.

But it wasn't enough time to make an assessment of the rules. Who knows? Perhaps if an extra week or two had been given, 150,000 negative comments would have come in. But then, of course, Judge Walker could implement the rule changes anyway.

In the end, the five-member majority, while "not here express[ing] any views on the propriety of broadcasting court proceedings generally," simply thought the issue in the case was too sensational, too high-profile, too already over-publicized for a rebroadcast pilot program:

This case, too, involves issues subject to intense debate in our society. ... This case is therefore not a good one for a pilot program.

 

[pgwenthold]

I'm sure other people appealing their cases to federal court will be reassured to know that the supremes don't consider them to be worthy of intense debate.

 

[Brown]

I'm sure other people appealing their cases to federal court will be reassured to know that the supremes don't consider them to be worthy of intense debate.

Yeah, the Supreme Court is a little funny that way. This Court has resisted efforts to have its own oral arguments televised, out of fear that arguing counsel will turn the oral argument into a circus. Such a fear may have a legitimate basis in fact, in that there often is a circus-type atmosphere outside the Court's building on argument days and on days when noteworthy opinons are handed down.

And yet, there have been quite a few cameras in other appellate courtrooms for many years now, usually without problems. True, there are the occasional grandstanders and nutcases, but they usually don't get much exposure or leverage from their antics. The appellate courts do just fine.

But the Supreme Court still resists admission of the tube into its courtroom.

There have been some really high-profile cases (mostly at trial court level) in which the presence of television cameras interfered with the orderly conduct of the case. But most of the Supreme Court's cases aren't really all that high-profile (as Sarah Palin could attest, as she couldn't name a single case apart from Roe v. Wade). Lots of the cases deal with civil procedure or criminal procedure or taxes or bankruptcy or administrative law or admiralty or union law or treaties or federal benefits or commerce or federal circuit court squabbles.... The civil rights and First Amendment cases usually get the most attention, but there aren't that many of them.

But the Supreme Court still resists admission of the tube into its courtroom.

Oral arguments before the Supreme Court are open to the public. Audio recordings of the arguments are made, and transcripts of the arguments are available on the Court's own web site.

But the Supreme Court still resists admission of the tube into its courtroom.

 

[Puppycow]

I heard Emily Bazelon talk about this on a podcast and it sounds totally outrageous.

I guess they don't like the idea of the public having access to what happens in a courtroom.

Could it be to spite Ted Olsen (another connection with Bush v. Gore)? To deny him a wider audience? Could there be such base personal pettiness as one motivation?

 

[WildCat]

I heard Emily Bazelon talk about this on a podcast and it sounds totally outrageous.

I guess they don't like the idea of the public having access to what happens in a courtroom.

Could it be to spite Ted Olsen (another connection with Bush v. Gore)? To deny him a wider audience? Could there be such base personal pettiness as one motivation?

Olsen and David Boies, on opposite sides of Bush v. Gore, are actually working together on the same side in this case.

 

[Beerina]

Your confusion is natural, because the case is very complicated.

Thanks for the explanation. I can sort of see the complaints being a real concern, which is unfortunate.

 

[NobleXenon54]

It would be great if our politicians passed a bill to require all court rooms to have trial recordings made public - Just to spite Scalia.

If anyone is interested, you can watch a reenactment of Perry vs Schwarzenegger at marriagetrial [dot] com. The first episode is tomorrow. Hopefully PBS* will make a professional documentary of this like they did with Dover.

*Remember, the defendants of this case say that donating to PBS makes you a liberal. Same probably goes for watching it.

Now, the Supreme Court, by its own rules, is not merely entitled to step in and put a halt to what Judge Walker was planning to do, unless there was a showing of "irreparable harm." And (said the five-member majority), there was plenty of irreparable harm here. My goodness, was there irreparable harm, so much irreparable harm that you could hardly keep track of it:

Which is what I don't get. Four out of the six defendants already dropped out, even with this safe-for-bigots-to-hide ruling.

 

[Brown]

Postscript: In the end, many of the cowards who were so afraid of testifying on camera did not testify anyway, even after the cameras were no longer an issue. They continued to claim that they feared for their personal safety. From Judge Walker's opinion:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. ... The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated. ... The record does not reveal the reason behind proponents' failure to call their expert witnesses.

 

[ponderingturtle]

Postscript: In the end, many of the cowards who were so afraid of testifying on camera did not testify anyway, even after the cameras were no longer an issue. They continued to claim that they feared for their personal safety. From Judge Walker's opinion:

How will this effect appeals?

 

[Brown]

How will this [affect] appeals?

A choice not to present evidence--for almost ANY strategic reason--means that such evidence cannot be relied upon in an appeal. This means that Judge Walker's findings of fact will be harder to challenge.

There is little in the record indicate why certain evidence was introduced and why other evidence was not introduced. There is a hint in Judge Walker's opinion, though:

Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples.

The opinion recognizes that many of the opponents to gay rights laid their foundation for opposition upon religious grounds, which often included some fantastic (and totally baseless) propositions about the immorality of gays and what the Almighty plans to do about that immorality. Strategically, it was probably a good idea to minimize the number of loonies testifying about what they think is moral.

The evidence that WAS selected for presentation was garbage. The testimony of David Blankenhorn, a supposed "expert" on "marriage, fatherhood and family structure," was deemed virtually worthless: "The court now determines that Blankenhorn's testimony constitutes inadmissible opinion testimony that should be given essentially no weight. ... None of Blankenhorn's opinions is reliable. ... Blankenhorn's opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight." The testimony of Kenneth Miller on gays' political power was likewise deemed to be of little weight.

You shouldn't be able to blame the judge for "activism" when your side puts on a shamefully weak case. It's a fair bet, however, that those upset with the ruling will point fingers at everyone except themselves and their own pitiful inability to prove their case.