September 02, 2011 Articles

Should Supreme Court Arguments Be Televised?

Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.

By Stephen Feldman

Whether the U.S. Supreme Court should follow the Canadian Supreme Court’s practice of televising oral arguments was a central topic at a program at the ABA Annual Meeting in Toronto on August 5 sponsored by the Appellate Practice Committee. The program, entitled, “Our Highest Courts: A Comparison of the Canadian and United States Supreme Courts,” featured a panel of Justice Ian Binnie of the Canadian Supreme Court, the Canadian appellate practitioner Thomas Heintzman, the former D.C. Circuit judge and Solicitor General Ken Starr, and the former Solicitor General Drew Days. Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, moderated the panel.

Justice Binnie, a 13-year veteran of the court, started the discussion on the issue of televising oral arguments by recounting the first case he heard as a justice. In that case, the court addressed whether the province of Quebec had the right to secede and, if so, on what terms. Because of the unique nature of the case, as well as its national importance, the Canadian Supreme Court agreed to a four-day hearing that, like its other oral arguments, was televised nationally. Justice Binnie described the argument as “a massive civics lesson.”

Justice Binnie said that, more generally, televised oral arguments create a more informed electorate, give the Canadian public a flavor of the country’s judicial function, and enhance the legitimacy of the court. He hasn’t seen attorneys or judges grandstand for the cameras—which has been a key argument for those who oppose televised arguments in the U.S. Supreme Court. He also downplayed the notion that judges would become celebrities who could not anonymously go grocery shopping if oral arguments were televised.

Mr. Starr, now the president of Baylor University, said that he has been a longtime advocate for televised oral arguments, and he called for a “thoughtful conversation” on the topic. He emphasized the “tremendous” educational value of televising the arguments, and he contended that there is no democratic argument against doing so. Put bluntly, Mr. Starr said that televised arguments are “long overdue.”

Notably, the case that Justice Binnie described was one in which the Canadian government invoked the court’s “reference jurisdiction.” A creature of Canadian law, the executive branch can invoke “reference jurisdiction” to ask the Supreme Court to rule on hypothetical questions. According to Justice Binnie, the executive branch often seeks such opinions to obtain rulings that certain policy initiatives or programs proposed by its political adversary are unlawful. Mr. Starr described reference jurisdiction as a “very sensible device,” but one that has been eschewed by the U.S. Supreme Court owing to Article III of the U.S. Constitution.

In the case that Justice Binnie described, the court was asked to consider a scenario in which Quebec voted in a referendum to secede from Canada. Justice Binnie compared the circumstances to James Buchanan or Abraham Lincoln asking the U.S. Supreme Court in the late 1850s or early 1860s whether a Confederate state had the right to secede. The Canadian Supreme Court ultimately answered not with a yes or no, but rather by setting out a broad framework for the political process to follow if the hypothetical became a reality.

Significantly, Justice Binnie said that the Canadian Supreme Court took many months to reach its decision in the case, and that reaching a consensus and finding common ground took time. It was important, he said, for the justices to have time to reflect on the issues in the case. Ms. Greenhouse compared that process to the U.S.’s most recent “civics lesson”: The 2000 Bush v. Gore case, in which the U.S. Supreme Court agreed to hear the case, conducted oral arguments, and issued an opinion in a total of five days. Mr. Starr said that, separate and apart from the unique circumstances of Bush v. Gore, he wonders whether the U.S. Supreme Court has an adequate opportunity, in view of its June deadline to issue opinions, to reflect on all of the issues in the cases it hears.

The panel discussed other aspects of the two high courts:

Oral argument. Mr. Days, Mr. Starr, and Ms. Greenhouse all agreed that (and described how) oral argument before the U.S. Supreme Court can be the only chance that the justices talk to each other about the case, and they do so through questions to the advocates. In view of the short 30-minute period for arguments, the advocate must be very quick on his or her feet, and be prepared to have the case sharpened to its essence. (Mr. Days noted that, as shown by the memoirs of the late Justices Black and Frankfurter, the Supreme Court justices used to talk to one another about cases outside of oral argument.) Justice Binnie said that limiting communications to oral argument has its benefits: allowing justices to talk about cases in small groups could well foster the types of cabals or coalitions that would harm the institution in the long run.

The Canadian Supreme Court, by contrast, allows each side to argue for an hour. As a result, Mr. Heintzman said, Canadian Supreme Court advocates must “develop the case” and take the time to show the justices the very pieces of evidence that are key to the case. To that end, advocates submit “books” of key evidence and cases to the justices for reference at oral argument. Ms. Greenhouse compared that practice with some of the best U.S. Supreme Court advocates, such as Paul Clement, who argue to the court with a “bare table.” Mr. Days pointed out that, in the U.S., the parties submit a joint appendix to the court prior to argument.

Sources for interpretation. Justice Binnie said that the Canadian Supreme Court regularly turns to foreign law, which he said often has “interesting and persuasive ideas,” in its decisions.

Supreme Court advocates. Ms. Greenhouse pointed out that there is now a relatively small group of repeat advocates who appear before the U.S. Supreme Court. Justice Binnie said that although there are some Canadian lawyers who have appeared before the Canadian Supreme Court more than others, there is not an exclusive or small group of practitioners who handle the majority of the Court’s cases.

Number of cases heard. The panelists all suggested that the U.S. and Canadian Supreme Courts would benefit from deciding more cases. Justice Binnie said that he would like the Canadian Supreme Court to decide more commercial cases. Mr. Starr said that the shrinking Supreme Court docket has resulted in more conflicts in the law.

Canadian confirmation process. Appointment is the prerogative of the queen. In practice, however, the Prime Minister selects a nominee from a short list developed in parliament, but the Prime Minster has the discretion to nominate any candidate he deems qualified. Because Parliament has no vote, there are no formal hearings—a significant departure from the Senate hearings that are part of the U.S. Supreme court nomination process. The important criteria in Canada are not judicial philosophy (conservative vs. liberal), but rather geographic balance and language (French vs. English speakers). Justice Binnie described language as Canada’s “abortion issue.”

Keywords: appellate practice, Ken Starr, Ian Binnie, reference jurisdiction

Stephen Feldman is with Ellis & Winters in Raleigh, North Carolina.

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