The Nation: The Revolution Will Not Be Televised

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The Supreme Court's decision not to allow a televised trial for Perry vs. Schwarzenegger may be an early indicator of their division when the case reaches them directly. iStockphoto hide caption

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broken television

The Supreme Court's decision not to allow a televised trial for Perry vs. Schwarzenegger may be an early indicator of their division when the case reaches them directly.

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The Supreme Court has put an indefinite hold on any hope of the public seeing the much-discussed Proposition 8 trial going on in the courtroom where I am sitting in San Francisco. Their ruling staying any televising of the case, issued at 5pm on Wednesday, prohibits the federal court even from sharing the love with a handful of other courts around the circuit who requested closed circuit transmission to their courthouses. The trial court's plan was ultimately to transmit the proceedings to YouTube. Had the Supreme Court not intervened, the experiment in information-sharing would have enabled all Americans to see how a controversial constitutional decision is born, and might have turned down some of the heat on the courts to stay out of "social" issues like same-sex marriage.

The opinion divides exactly as the Court may well divide when it gets the issue of gay marriage itself: 5 to 4. All the conservative justices — Roberts, Scalia, Thomas, Alito and, most important, the would-be swing vote, Anthony Kennedy — voted to close the cameras down; and all the liberal Justices—Stevens, Ginsburg, Breyer and the newest Democratic appointee, Sonia Sotomayor — voted to let them roll. Televising the trial is powerfully important, but this decision is also significant for the tantalizing glimpse it provides into how the Court will divide when the same-sex couples arrive before them with their constitutional claim.

The majority opinion, which is described as "per curiam," but is seventeen pages long, and the four dissents, essentially track the parties' briefs. The conservative majority agreed with the anti-marriage defendants that the trial judge had not strictly followed the procedural niceties of extended public notice when he issued the rule opening the court to cameras. Indeed, the opinion includes a really waspish lecture to the uppity Ninth Circuit and its lower courts for so lightly and hastily disregarding the "advice" of the Judicial Conference of the United States, which, fourteen years ago, opined that cameras would be a bad thing (the opinion of the Judicial Conference is not binding on the courts, the justices admit, but still... it's their advice!). The majority justices even bought the defendants' contentions that the anti-gay marriage witnesses would likely be harmed if their pictures were shown, citing the same media reports of gay acting-out against Prop 8 sponsors that the defendants offered in their briefs.

As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.

The liberal dissenters similarly reproduce the arguments, but of the pro-gay marriage plaintiffs. Everybody in the case knew the prospect of televising the trial was coming, they point out, which is surely the case, and the judge invoked the well-established pre-existing procedure for dispensing with the long comment period in circumstances of immediate need. The dissenters expressed astonishment that the Supreme Court would use an extraordinary remedy like a stay to interfere with something that's basically a housekeeping matter by the lower courts. Finally, the dissenters reiterate the plaintiffs' argument that the defendants and witnesses voluntarily placed themselves in a political contest, indeed, intervening in this very case, that none of the civilian witnesses had even asked the court not to televise the trial and that the remaining witnesses were well known experts who were already being heavily reported on in the traditional ways (citing an AP article from the courtroom by way of example).

Reading the opinion and dissent brings a terrible déjà vu sensation I'm going to call for short... Bush v. Gore. The case is wildly political, the issue looks deceptively procedural, the Court intervened in a way they almost never intervene and the justices lined up exactly as their political histories would predict. It is impossible to ignore the signals that this procedural decision sends about how the Court is going to divide when the issue of same sex marriage reaches them directly.

The organization that has put California's rejection of marriage equality on trial, American Foundation for Equal Rights, issued a relatively innocuous statement to the effect that trials should be open. But for the millions of gay men and lesbians and the people who are supporting them, it's hard to overstate the ominousness of this seemingly collateral decision.

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