The annual House hearing called to consider the Supreme Court's budget request began with its usual rituals Thursday morning. Members of Congress and members of the Court -- Clarence Thomas and Stephen Breyer this time around -- praised the occasion as a historic meeting of two branches of government. "A rare opportunity" for the legislature and the judiciary to interact and exchange views, said appropriations subcommittee chair Rep. Jose Serrano, D-N.Y. "We are honored," replied Thomas.
The hearing proceeded in the same vein for a while, full of blandishments and collegiality. But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on, telling the Court that the momentum toward openness that the Internet has created is so strong that the Court would be wise not to resist it. By the end of it Breyer and Thomas could have been forgiven if they started to think they'd been hit by a coordinated attack from wild-eyed techies.
The provocateur was conservative Rep. John Culberson, R-Tex. He started on the wrong foot when, in the course of extolling the power of the Court, he said, "Any five justices, in effect, can amend the Constitution." To which Thomas replied, "I hope not, my goodness." Breyer said calmly, "We interpret the Constitution," rather than amending it. "We don't see ourselves as amending the Constitution."
Seemingly energized, Culberson moved on to his main point, urging the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audio tapes, and of plans for an improved Web site. Culberson said there would be "no logical distinction" between what the Court has already done, and streaming the video of oral argument on the Court's Web site Suddenly, dressed in high-tech clothes, the old debate over cameras in the Supreme Court had been resurrected.
"It's a very easy matter on the Internet," Culberson said, and to prove it, he took out a device, aimed at the justices and announced that at that very moment, their visages were being seen live on the Internet. (Culberson's video is available at this link.) The justices were startled, but smiled for the camera. (C-SPAN's cameras were also rolling.) Serrano also waved to the camera, joking that the video would let Culberson's constituents see "what a liberal looks like."
"The next American revolution is going to come through the Internet," Culberson told the justices. "I encourage you to break down that wall. It's as easy as pushing this button."
Serrano chimed in, also urging the Court to follow the trend and be more transparent. "That train has left the station," Serrano said, urging the Court to allow cameras in, "to keep the people informed."
The justices retreated into their usual arguments against camera access. As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don't want to damage it in anyway. Before deciding if the gains are worth the risk, Breyer said "social science research" is needed. Later, Culberson implored Breyer and Thomas, "Don't wait for the social science research. Trust your hearts."
Thomas too spoke of the Court's cautious nature, telling Culberson that on the current Court, there is "no one who will aggressively push the institution in a way that will result in some diminishment of the institution." But he did say that within the Court, "there has been quite a bit of discussion" about the issue, especially since legislation that would require the Court to allow cameras was introduced in Congress.
Will Thursday's impassioned display of pro-cameras sentiment in Congress make a difference? Thomas had said that the appropriations committee's views had spurred Supreme Court action on improving technology over the years. Thomas and Breyer must have left the hearing feeling the momentum on cameras coming from Congress and from technology was heading strongly toward openness. If the Court eventually, finally, says yes sometime in this century, Thursday's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part.
This article first appeared on The BLT: The Blog of Legal Times.