Supreme Court decision stopping webcast of Perry trial draws cross-fire

by on January 19, 2010  •  In Uncategorized

Sometimes a Supreme Court opinion gets blistered from day one, and that appears to be the majority – although far from the only – reaction to the Court's reversal of District Judge Vaughn Walker's decision to allow the trial proceedings in Perry v. Schwarzenegger to be webcast. I don't usually do round-ups of other voices (my own reaction here), but this opinion – on an obscure procedural point – obviously touched a lot of nerves, ranging from bias/equality concerns to how courts should be run in a media intense culture. Consider:

University of Minnesota Law Professor Dale Carpenter gave voice to what many lgbt rights advocates fear:

While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin [Kerr] suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.  That may or may not be what the district court did, but that’s what five Justices have concluded.  As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial. The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.

All in all, it’s a bad start for the judicial challenge to Prop 8.

Emily Bazelon, at Slate, agrees:

None of this bodes well for the main show. The power lawyers for the Perry plaintiffs, Ted Olson and David Boies, argued in filing this high-stakes, risky suit that they can count five votes for same-sex marriage on the Supreme Court because of past decisions by Justice Kennedy, whom they read as sympathetic. But if Kennedy is ready to block cameras from recording the stories of gay couples, at the behest of their opponents, how sympathetic is he? Would he really take the enormous step of striking down 40 state laws across the country that bar same-sex couples from the altar? This, like the Perry trial, it is hard to see.

Another striking aspect of the response was the quick comparison to Bush v. Gore, and the fact that both those who agreed and disagreed drew the link. UC-Irvine Law Dean Erwin Chemerinsky, quoted in the LA Times:

The ideological split was stunning. It made me think of Bush vs. Gore.

GW Law Professor Orin Kerr drew the same comparison, but supported the Court's action as an intervention to stop a lower (or state) court from "manipulating the rules." His colleague Jon Siegel also agreed with the decision.

FIU Law Professor Howard Wasserman supported the ruling on what he called "formalistic" grounds, but not without criticism:

…[T]he majority … insist[ed] that, procedural rules aside, this case is not a good one for the Ninth Circuit's camera pilot program, because it is a high-profile case involving "issues subject to intense debate in our society." The majority has been (rightly) lambasted for this assertion. After all, the suggestion seems to be that publicizing trial might be a good idea for informing the public about legal proceedings, except when the public actually cares about those proceedings. By all means, televise the diversity property-damage traffic accident, but not the case (and the legal, factual, and social-scientific evidence and arguments) that may edcuate the public and help decide fundamental political-social issues. That substantive view undergirds the procedural decision.

NYU Law Professor Barry Friedman called the Prop 8 trial "a morality play aimed at all of us,… and we should get to see it."

Adam Liptak in the NY Times was understated but critical:

On Wednesday, [the Supreme Court] shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.

Dalia Lithwick at Slate was more pointed:

…[B]eneath all of the social-science testimony and constitutional nitpicking lies a deep institutional anxiety about whether California's voters or unelected federal judges should be the arbiters of what marriage means. Opponents of liberal jurisprudence, and their pushy push to legalize gay marriage, have long argued against allowing unelected, sherry-sipping judges to substitute their values for those of the American people. As an argument, this has legs. It's populist. It's catchy. But it's hard to take it seriously when the same people making it also come out strongly against letting the people watch trials.

Orin Kerr was not persuaded by Lithwick's column that the hypocrisy cut only one way, arguing that progressives had to be equally ready to support the televising (and all the ensuing free PR for the plaintiffs) of a reverse discrimination case, for example.

I saw only one major journalist who was supportive of the Court. From the Washington Post:

…Walker performed legal pirouettes worthy of "Dancing with the Stars" to ensure cameras in his courtroom for the same-sex marriage trial. … In many ways, the case is indeed a perfect candidate. It’s a bench trial, meaning the judge presides and decides — there’s no jury that could be swayed by cameras or coverage. Lawyers on both sides of the case are among the best in the country and veterans of multiple high-profile cases. So they should be able to perform professionally without turning the proceedings into a circus. And there is unquestionably high public interest in viewing the proceedings and understanding the outcome.

But rather than accept that the legal framework for trial broadcasts was not yet in place, Walker cut corners and rushed through proposed changes in the proverbial dead of night — on New Year's Eve, no less. He also went way beyond the limited and controlled broadcasts approved by the chief judge of the federal circuit. And he gave short shrift to opponents of gay marriage, who argued that broadcasting the proceedings would subject them to increased harassment by gay marriage supporters. … I also don't think that the kinds of concerns raised by the opponents of gay marriage generally should derail broadcasts; they're not, after all, in the witness protection program testifying against Mafia bosses. But Judge Walker didn’t allow sufficient time for those and other concerns to be raised and considered….

At a minimum, the opinion's stinging rebuke of Judge Walker will fuel conservative attacks on his fitness to hear the case. Attacking this judge has already become a recurring theme in the PR strategy of Prop 8 defenders. Judge Walker is in the media cross-hairs.


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