Aren’t These the “People’s Courts”?

By guest writer Jason Harrow, 1L at Harvard Law School, who attended the First Circuit Oral Hearings.  See his initial post here.

Joel’s brief before the First Circuit stated that “public access to the courtroom is a power and responsibility of the law.” This should be uncontroversial; after all, the Sixth Amendment makes explicit that “the accused shall enjoy the right a speedy and public trial.” But slowly and steadily, without much public outcry, a class of judges and policymakers appear to have successfully turned that presumption of publicity on its head, as if “The Law” is inaccessible to anyone not belonging to some elite class. On Thursday, In Re Sony BMG Music Entertainment, if it stands, will be just another notch in the belts of those seeking essentially a hermetically-sealed legal system.

Consider other examples. Justice Scalia in 1989 seemed to imply that having cameras in courts wouldn’t help the average Joe because the general public just can’t understand the law: “That is why the University of Chicago Law Review is not sold at the 7-Eleven,” he said. And he reiterated this view as recently as a few years ago: “for every one person who sees [a proceeding] gavel-to-gavel … 10,000 will see 15-second sound takeouts on the network news, which I guarantee you will be uncharacteristic … So, I have come to the conclusion that it will misinform the public rather than inform the public.” But this strikes me as a curious and arguably Orwellian sort of argument. How can increasing the availability of a judicial proceeding – an occurrence explicitly required to be public in our Constitution – lead to more misinformation than good information? Isn’t the logical conclusion to this line of thought that proceedings should be entirely closed, lest nasty newspaper reporters take quotes out of context or audience members go back and tell their friends about anything less than the complete transcript?

Indeed, this strong form of the argument was made in 2005 by Justice Kennedy. Speaking specifically of the cameras in the Supreme Court, he said, “Our timeline, our language, our grammar, our ethic, our chronology, our dynamic are different from the political branches … By keeping the TV out, you teach that.” This is the perversely perfect articulation of the mindset of the closed, the exclusive, the elite: how better to affirmatively teach the unwashed masses about the differences between judicial proceedings and political proceedings than by totally cutting off access to court and just telling the public the outcome?

And so Judge Selya has added his name to the list of judges who think that the issue is not about the “guaranty of a fair trial” or the “right of public access to the courts” but that this is merely a case “about the governance of the federal courts” – where, of course, the learned judges themselves are the final governors of who can see what happens and who cannot. Judge Selya’s offhand remark that, in this case, “all roads lead to Rome” may cut even deeper than he ever imagined, then: while the very public jury trials of Ancient Athens are described by one scholar as “the apotheosis of democracy,” the Romans eliminated the use of these “people’s courts” when they conquered the Greeks in 146 B.C.E.  It’s two millennia later, but the slow and steady decline of public access to judicial proceedings continues unabated – for now, that is.

Sources:

http://www.michiganlawreview.org/firstimpressions/vol106/mauro.htm
http://books.google.com/books?id=rG4KI18gEmEC&pg=PA3&lpg=PA3&dq=roman+trials+public&source=bl&ots=K6lZzCX-P1&sig=3PsU_nZfcd47aQvORvcbHuY1yNw&hl=en&ei=dVHpSaGlOMKrtgfewfSYBg&sa=X&oi=book_result&ct=result&resnum=3#PPA4,M1
http://www.c-span.org/camerasinthecourt
http://www.law.umkc.edu/faculty/projects/ftrials/socrates/greekcrimpro.html