Scalia Take 2: The American Public is Pretty Smart After All -- Unless We're Talking About Supreme Court Hearings

| Mon Jul. 30, 2012 8:39 AM EDT

A few days ago I scolded Antonin Scalia for his belief that Supreme Court hearings shouldn't be televised because the media would just play short snippets of the proceedings and Americans couldn't be trusted to figure out what was really going on. Here's Scalia:

If I really thought it would educate the American people, I would be all for it. If the American people sat down and watched our proceedings gavel to gavel [...] they would be educated. But they wouldn't see all of that. [C-SPAN] would carry it all, to be sure, but what most of the American people would see would be 30-second, 15-second takeouts from our argument, and those takeouts would not be characteristic of what we do. They would be uncharacteristic.

At the end of the post I wondered aloud whether Scalia was equally pessimistic about the public's ability to discern the truth in any other context. As it turns out, I didn't have to wonder for long. Reader JB sent me a clip from a different part of the same interview that answers this exact question. In this clip, Brian Lamb asks Scalia about campaign finance:

As a person, do you worry at all that there's too much money in politics?

No, I really don't....

But what about — people are worried that corporations now can buy....

If you believe that, we ought to go back to monarchy. That the people are such sheep, that they just swallow whatever they see on television or read in the newspapers? No. The premise of democracy is that people are intelligent and can discern the true from the false.

Italics mine. So that's that. When it comes to judging the policies of the legislative and executive branches, the public should be assumed intelligent enough to see through all the clamor and commotion and figure out what's going on. No paternalism here! But when it comes to the judicial branch, we should assume no such thing. Instead, we should carefully decide exactly what kind of access to give the public, lest the media and special interests appeal unfairly to their collective passions and leave the wrong impression of what the court is doing.

Personally, I'd say the case for a modest amount of paternalism is quite a bit stronger in the campaign finance arena than it is in the Supreme Court hearing arena, which is naturally insulated already from political and special interest influence. But apparently Scalia doesn't see it that way.

POSTSCRIPT: As long as I'm on the subject, I was surprised at how much pushback I got against the idea of televising Supreme Court hearings in the original Scalia thread. I know that we're in the middle of a presidential campaign, and in particular we're in the middle of a campaign in which Mitt Romney is rather spectacularly using 15-second TV clips to misrepresent his opponent. So it's natural to be disturbed about the misuse of televised snippets at the moment.

But as I said in comments, limiting exposure to public proceedings just because you don't like what the media will do with it is a very, very bad precedent. Transparency and access should be core liberal values even if we don't always like the results. It's one thing to restrict access because you think judges and lawyers will play to the cameras if they're on TV. That has some merit, even if, in the end, I don't find it compelling. But limiting access because you don't trust the media or the public with the information? Count me out.