Stephen Colbert‘s interview with Justice Stephen Breyer on last night’s episode of The Late Show was quite the contrast, with the host’s questions, delivered with a half-folksy, half-comedic punch, set against Breyer’s soft-spoken responses.
Outside of the many contentious issues brought up in the past few SCOTUS sessions or slated for next year’s docket, perhaps the biggest issue is who gets to see those deliberations, a point that Colbert brought up.
“The Supreme Court is about the last place in America where I couldn’t bring my camera crew in to shoot what the government is doing, to get video of what the government is doing,” begins Colbert. “Why can’t we watch you if the Supreme Court repeatedly rules that we can be watched by the government,” he asks to audience applause.
“There are very good arguments in favor of what you’re saying,” responds Breyer.
“I just made a very good one,” retorts Colbert.
But Breyer’s initial assent leads way to a heavy dose of skepticism about the benefits of that process.
“I’m in a job where we wear black robes in part because we’re speaking for the law. Everybody knows we are human beings, but the country doesn’t want to know the Constitution according to Breyer or according to O’Connor,” says Breyer, referring to retired justice Sandra Day O’Connor. “They want to know what the answer to this thing is. And that’s true of the process. If you had cameras right there in the process of oral argument…we don’t know what the reaction exactly would be, among the lawyers and others.”
Breyer also expresses concern that televising SCOTUS proceedings will make it seem as if oral arguments occupy a more important place within the decision-making process than is the case.
The oral argument is about five percent of the the basis for deciding a case. It’s almost all in writing. And the toughest part about this question you posed is this: when I’m deciding a case, I’m deciding it for 315 million people who are not in that courtroom. The rule of law, the rule of interpretation–it applies to everybody. But human beings, correctly, and decently, relate to people they see. And they’ll see two lawyers and they’ll see two clients. Will they understand the whole story? Will they understand what we’re doing? Will there be distortion? That’s the arguments against you.
Breyer does consider the other side. “The argument for you,” he says to Colbert, “is it would be a fabulous educational process.”
“And pretty entertaining sometimes, too, I’m guessing,” says Colbert.
“No,” quips Breyer.
“I disagree,” responds Colbert.
And with that we bring you to today’s poll. Is Breyer correct? Is the process by which SCOTUS deliberates too complex to allow for oral arguments to play out in front of the public, or does the public deserve more credit than Breyer gives it?