Another Dreary 5-4

A snappy little per curiam from the Supreme Court this week on the question of whether to stay the decision of a district court in California to broadcast the current trial on the question of whether the state's ban on same-sex marriage is unconstitutional.

Now, look. You may or may not like same-sex marriage. You may or may not like broadcasting trials. But that isn't even what the Court's decision is about. The question was whether the district court followed proper procedures in amending its rules, which previously prohibited broadcast of trials, to allow the broadcast of this trial as part of a "pilot program."

But before reading further, see if you can guess which five Justices thought it hadn't and which four thought the change was OK?

The question of whether federal trials and other federal judicial proceedings should be broadcast has gotten a fair bit of attention over the last few years. The national Judicial Conference (a body that represents the whole federal judiciary) has been steadfastly against it. Congress has been considering some bills to permit it, but they haven't gotten very far yet. At the moment, broadcast is generally banned but it's open to federal courts to change that by rule.

But there are procedures that have to be followed to change federal court rules. In particular, the Rules Enabling Act requires a court that wants to make or change a rule to give "appropriate public notice and an opportunity for comment," unless there is an "immediate need" to make the rule change without such notice and opportunity.

Did the district court in this case do that? You decide. As early as September 25 of last year, the district court informed the parties that there was interest in having the trial broadcast. One month later, the court of appeals's chief judge appointed a committee to consider changing court rules to permit such broadcast. On December 17, the Ninth Circuit's Judicial Council announced that it had approved a limited pilot program to test broadcasting of judicial proceedings.

On December 23, the district court announced that it had changed its local rule, which had prohibited broadcasts, to permit broadcasts in connection with the pilot program. But then on December 31, the district court withdrew that announcement and instead announced that it was proposing a revision of its local rule, and that public comment was solicited, with a deadline of January 8. Then on January 4, 2010, the district court again changed the announcement, to state that it had changed its local rule, effective December 22, based on the "immediate need" to make the rule change.

Well. As the Supreme Court ruled this week, it sure seems like the district court didn't know what it was doing. Speaking as an administrative law professor, I would say that this sounds rather like an agency that discovered only at the last minute that it was subject to procedural requirements and that scrambled around to try to justify procedurally what it had already decided to do. The Supreme Court suggested -- rightly, in my opinion -- that an agency that tried to pull this kind of stuff would get slammed by a reviewing court.

The district court proposed a public comment period that lasted a whopping five business days -- and it didn't even hold the comment period open for that long before acting. Most agency public comment periods last at least 30 days. Also, when agencies claim an emergency need to avoid a public comment requirement, it's usually for something really important, not something like, "we have a particular case that we'd like to get into the new program." I mean, let's face it, federal trials have been not broadcast for hundreds of years; it won't kill anyone it this particular trial isn't broadcast and the new pilot program only takes effect after it's over.

So it seems to me that the district court was engaged in absurd procedural shenanigans and it rightly deserved to get smacked.

Now, I recognize that there are arguments the other way. As the dissenting opinion in the Supreme Court pointed out, the parties to the particular trial involved had sufficient notice (3 months or so) of the possibility of broadcast. There was some period of public comment -- and apparently there was a huge response; over 130,000 comments were received, almost all favorable. In addition, the Supreme Court isn't supposed to act on just anything that gets filed with it; its jurisdiction is discretionary and it's supposed to reserve its time for really important matters, which this isn't. So there's a good argument that the Court should have declined to act.

So I think I agree with the Court's action, but it's not entirely one-sided.

But here's the thing: the vote was 5-4, and it was the five conservatives against the four liberals, as usual.

Sheesh! Does everything have to be politicized and ideologized? Just because the hot-button issue of same-sex marriage is involved, does every small procedural detail of the trial have to be split along liberal/conservative lines? Couldn't just one of the liberals have decided that, as an administrative law matter, it's wrong for government bodies to ignore procedural constraints because they're in a hurry on a particular case? Couldn't just one of the conservatives have decided to follow the Supreme Court's usual practice of not bothering with piddling matters?

Sigh. I find it increasingly depressing that no one seems to be able to break out of their ideological cocoons. This case was primarily a procedural issue. But everyone's so focused on the hot-button background that no one can (one might say) think straight.