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" I belive Congress has the authority, should it choose to do so, to direct the Supreme Court to permit its proceedings to be televised", declared U.S. Senator Arlen Specter in 2010.  "The Supreme Court, in a series of cases, has said the public has the right to know what is going on inside the courtroom...  Well,in an electronic era, where the public gets so much of its information via television or via radio, there ought to be that access."  What constitutional issue might be raised if Congress enacted Specter's suggestion in to law?

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Most debates on cameras in the courtroom revolve around whether the presence of cameras will cause judges and lawyers to play to the cameras instead of doing what they should be doing.  Other aspects of the debate include the issue of protecting the privacy of witnesses or the due process rights of the accused.  None of these is really present when we look at this issue with regard to the Supreme Court.  Instead, the major issue seems to be one of separation of powers.  Specter’s statement asserts that Congress has the power to tell the Supreme Court how to run its daily affairs.  It is not clear that it has such a right.

Our Constitution sets up three branches of government that are supposed to be legally equal to one another while having separate powers.  They do have “checks and balances” over one another, but outside of those checks and balances, they are supposed to be separate.  It is not at all clear that the Congress has the right to violate that separation by telling the Court to televise its proceedings.

Congress clearly has the power to set the number of justices on the Supreme Court.  It has the power to set their pay, though it may not reduce the pay of a sitting justice.  It has the power to impeach members of the Supreme Court.  None of this, however, gives it the power to tell the Court how to run its hearings.  This does not clearly give Congress the right to tell the Court, for example, how long to let attorneys argue or how many questions to ask.  It also does not clearly give Congress the right to tell the justices to televise their proceedings.

Thus, implementing Specter’s suggestion would likely bring up a conflict over separation of powers and the power of Congress to tell the Court what to do.

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