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Justices Better at Precedent Than Prescience

That's the title to this interesting Adam Liptak NYTimes article. Liptak argues that the Supreme Court Justices aren't too good about making predictions. I particularly like the discussion of broadcasting federal court hearings. I think it's absurd that we don't allow cameras in the courtroom. From the article:

The Supreme Court?s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future.
On Wednesday, for instance, it shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.
Consider first of all that we are talking about a trial held in open court and subject to intense press coverage. The witnesses are mostly paid experts whose views on the subject are already well known. ?They?re not, after all, in the witness protection program testifying against Mafia bosses,? Eva Rodriguez wrote in The Washington Post.
Then add to the analysis that the additional coverage the court forbade was only closed-circuit transmissions to a few other federal courthouses around the country. (There had been talk of posting video on YouTube, but the idea was never approved and so was not before the Supreme Court.)
The people viewing the transmissions in the remote courthouses would have been barred from making recordings of the proceedings. Allowing the transmissions, Eugene Volokh wrote on The Volokh Conspiracy legal blog, was equivalent to ?holding the trial in an extra large courtroom.?
?And most of the extra audience would be far from California,? Mr. Volokh added, ?and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness?s testimony.?
There were other grounds for the court?s 5-to-4 decision, including the majority?s sense that lower-court judges in California have twisted the procedural rules to allow video coverage, a point that resonated with Ms. Rodriguez and other commentators. But the court also grounded its ruling on a finding that opponents of same-sex marriage ?have demonstrated that irreparable harm would likely result? from the transmissions.

Full post as published by Southern District of Florida on January 18, 2010 (boomark / email).