Justice Kennedy's opposition to cameras in the Supreme Court.

Yesterday, Justice Kennedy testified before a House Appropriations subcommittee:

Last year, Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, introduced a bill to require the Supreme Court to permit its arguments to be televised unless a majority of the justices voted to bar television on a case-by-case basis. Other proposals include mandating television access, or simply permitting and encouraging it.

Asked for his views on the subject, Justice Kennedy said it raised a "sensitive point" about the constitutional separation of powers.

"It's not for the court to tell Congress how to conduct its proceedings," and the reverse was also true, he said. He added, "We feel very strongly that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches."

So, it raises the question of separation of powers, but would requiring television cameras in the Supreme Court violate separation of powers? When I first read about Specter's bill, I tossed off a post saying "I should think there is a decent argument that this would be unconstitutional, violating separation of powers." Then, a reporter called me and asked me to explain why, and I had to admit I couldn't see why the argument was any good.

Kennedy says "It's not for the court to tell Congress how to conduct its proceedings," but the U.S. Code is full of statutes telling courts how to conduct their proceedings. Reexamining the question after the reporter's call, I decided to support Specter's bill:

I think the public would be well served by the ability to see and hear [the oral] arguments, and much as I would prefer the Court to adopt cameras for itself and think it's rather intrusive for Congress to act, I think Congress should do it. I'll explain why....

The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices... are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanant but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

The fervent opposition of the Justices makes it hard to stick to my tough position, but it also enhances my suspicions. What are they trying so hard to protect? From the first-linked article:

[Justices Kennedy and Thomas], who have been the court's representatives to Congress on budget matters for several years, appeared to relish the chance to elaborate on the television question. Justice Kennedy described the absence of cameras as a positive.

"We teach that our branch has a different dynamic," he said. "We teach that we are judged by what we write."

One member of the subcommittee, Representative John W. Olver, Democrat of Massachusetts, appeared taken aback by Justice Kennedy's fervor. "You've made it clear that you are part of the cerebral branch," Mr. Olver said.

What's this "we teach" business? I'm a law professor, teaching about the Court all the time, and I certainly don't teach that the writing should be taken at face value. We try to figure out what's behind the writing. A judge may want you to accept his writing at face value, but we'd be fools to do that. And when it comes to judging the competence of a person holding life tenure to a position of great power, we should be critical and not deferential.