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Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.

I don’t have much to say about the technical constitutional issue. Nothing in constitutional text, history or precedent appears to clearly answer the question of whether the proposed legislation crosses the line between a reasonable regulation of judicial proceedings and an unwarranted infringement on judicial independence. If you want to read an argument that it does, see this recent law review note, but frankly it failed to persuade me.

The more important issue to me, though, is not whether Congress has the constitutional authority to enact this legislation. Rather it is whether Congress ought to abstain from exercising its authority in light of that warm and fuzzy notion of inter-branch harmony known as “comity.”  Here Congress could do worse than to consider a very old Supreme Court case cited in Mahoney’s testimony, Anderson v. Dunn, 19 U.S. 204 (1821).

Anderson speaks to a constitutional branch’s inherent authority to control its physical environs. As Mahoney quotes the Anderson Court, “courts of justice are universally acknowledged to be vested, by the very creation” with the “power to impose silence, respect and decorum, in their presence” and “to preserve themselves and their officers from the approach and insults of pollution.” Id. at 227.

Anderson, however, did not involve a court’s use of this inherent authority. Instead, it involved the exercise of the contempt power by the U.S. House of Representatives, which, the Court found, was similarly entitled to control its proceedings, particularly with respect to matters occurring “within their own walls.”

Whether or not the Court would be similarly receptive to congressional prerogatives today remains to be seen. There are those who think the notion of each branch having special power to control the activities within its own walls is archaic. Yet I think it goes a long way toward explaining the outrage that Members of Congress expressed when the Justice Department unilaterally executed a search warrant in the Rayburn House Office Building. Notwithstanding the debatable technicalities of the Speech or Debate objection, these Members instinctively believed that it was improper for the executive and judicial branches to breach the walls of Congress, as it were, without permission.

The Senate Judiciary Committee would be well advised to keep this in mind before moving forward with cameras in the Supreme Court. Perhaps Mahoney’s testimony might best be summarized as a reminder to both Congress and the Court of this non-constitutional dictum: Do unto others as you would have others do unto you.

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