It didn't rank with Daniel Webster's oratory in the Dartmouth College case of 1819, and it was less dramatic than Thurgood Marshall's impassioned plea in the school segregation case of 1954, but Monday's oral argument in the Supreme Court over desecration of the flag was a beauty. Sorry you couldn't be there.
The nine justices were there. Opposing counsel were there. A couple of hundred privileged spectators had first-class tickets. Huddled behind the grillwork, riding in coach, were a hundred reporters straining to hear the argument.But no television cameras were there. The whole business is absurd. Given today's inconspicuous TV technology, the high court's adamant, blockheaded refusal to permit TV coverage of oral argument is inexcusable. Who do these nine eminences think they are? Gods? Immortals?
The trouble is, that is exactly what the justices think they are. Former Chief Justice Warren Earl Burger is authority for the proposition that to permit television coverage would be to destroy the "mystique" of the high court. If the people once discovered that human beings were beneath the black robes of judicial office, the game would be up. During his tenure as chief justice, Burger often swore that TV cameras would enter the courtroom only over his dead body. I have great affection and respect for the gentleman, but on this question his attitude is intolerable.
The two companion cases that were argued Monday morning provided a superb opportunity to educate the American people not only in the function of the high court but also in the meaning of the First Amendment. There was no valid reason to deny the people the surrogate services of TV. The court, after all, belongs to the people who pay the justices' salaries. What is wrong with letting the people see what is going on?
Forty-two of the 50 states permit television coverage of appellate proceedings. Have their walls of judicial prestige come tumbling down? Have jurists and lawyers hammed it up? No convincing evidence supports the notion that these state courts have suffered from letting the people in.
The argument began at 10:28 a.m., with presentation of the government's case by Solicitor General Kenneth W. Starr. He is a mild-mannered fellow, orderly, almost prim. He had his argument so well-organized that we could hear the Roman numerals as he spoke. He contended (I) that Congress had carefully considered the anti-desecration act of 1989; (II) that the act was narrowly drawn; (III) that the act of flag-burning, in itself, carried no particular message; and (IV) that the law implicates intangible values of the highest order.
William M. Kunstler did better in his half-hour. He is a shaggy, craggy man, with the face of an eccentric English peer. In a raucous voice, roughened by years of rousing the rabble, Kunstler argued effectively that flag-burning is indeed a form of "free speech," just as a divided court had ruled in the Texas case a year ago.
So it went for a fascinating hour, as keen minds on the bench and at the bar explored the first of our great freedoms. I wish you could have been there. One day you will be.