When Chief Justice Roberts offered hypothetical during Masterpiece Cakeshop arguments Tuesday on whether Catholic Legal Services could refuse to offer dispute resolution for same-sex couples, he had the following interaction with the ACLU’s David Cole (p. 92):
Mr. Cole: [L]egal services are speech, Your Honor. I don’t know what other than speech I’m engaged in, for example, right now. C.J. Roberts: No, I would say partly expressive conduct. You’re engaged in a representation before the Court, which involves a lot more than simply what you’re saying in response to the answers.
Fix the Court executive director Gabe Roth released this statement in response:
Chief Justice John Roberts caught himself in a pickle today by conceding that oral advocacy is not simply speech, as the respondents’ lawyer had asserted, but also ‘conduct’ that ‘involves a lot more than simply’ speaking. By his own logic, and from his own court’s precedents, the Chief Justice has no basis for shutting out broadcast media.
It’s clear to anyone who has attended an appellate argument that oral advocacy comprises more than the words on a page released hours after the fact, such as the give-and-take among the justices and between the justices and the advocates, the body language therein, the attempts to jump in at key intervals and the prevaricating before answering a creative hypothetical.
As Chief Justice Warren Burger wrote in a 1984 press freedom case, ‘The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed.’ Technology that didn’t exist three decades ago now affords us the ability to show, without intrusion, that ‘standard of fairness’ far beyond the confines of the courtroom, and after today, it seems as if the Chief Justice would concede that point. Now he should act on this ‘cameras concession’ and permit broadcast media in oral arguments.