The same-sex marriage trial now underway in California is unique for many reasons. The plaintiffs' lawyers are superlawyers David Boies and Ted Olson, adversary lawyers in Bush v. Gore, the questionable 2000 Supreme Court ruling that gave the presidency to George W. Bush. The trial is also unique because they are trying to show that Proposition 8, which prohibits same-sex marriage in California, violates the Constitution. But it is also unique because the court decided that a few courtrooms around the country could broadcast the trial live on closed-circuit television.

That will not happen, however. The Proposition 8 supporters -- the ones who don't want same-sex marriage -- objected to the televised trial. The Supreme Court this week agreed with them and stayed the broadcast. In non-legal terms, the Justices overturned the court order allowing the broadcast. The revolution will not be televised.

There are two components to the Supreme Court's ruling. First, the Court said that the California federal court system did not follow the rules in allowing the broadcast because the proposal did not allow the public enough time to submit their comments for and against. The Court also said that Proposition 8 supporters (the anti gay rights people) will suffer "irreparable harm" if the trial is televised.

This was a 5-4 decision. The five conservatives stood firm on the procedural "violation" like the hall monitor grabs you before you slip into the bathroom without your hall pass. The four justices in dissent called out the majority on this technical objection in arguing that the public had more than enough time to be heard on the proposal. Let me focus on the alleged harm that would befall the marriage opponents had the trial been broadcast around the country.

Emergency court proceedings succeed when someone can show that he would suffer irreparable harm without a court order. Irreparable harm means harm that cannot be fixed or remedied at the end of the case. Financial losses are not irreparable because you can recover them when the case ends. The loss of the right to speak out on political matters represents classic irreparable harm. The alleged irreparable harm in this case was the argument that the anti-marriage witnesses (include paid expert witnesses) would testify different if their testimony is broadcast around the country in light of harassment and threats from their political opponents. The Supreme Court majority reasons, "It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings."

This is quite lame. Witnesses take the oath to tell the truth, and I presume that witnesses testifying about why they support Proposition 8 are able to put their money where their mouth is. Are witnesses really going to testify differently out of fear that they will be harassed by people watching the trial in federal courtrooms around the country? I doubt it. The four justices in dissent have the better argument in favor of public broadcasts. On their behalf, Justice Breyer writes:

I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from thesimple fact of transmission itself. By my count, 42 Statesand two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. Neither the applicants nor anyone else "has been able to present empirical data sufficient toestablish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.� ...

The applicants also claim that the transmission willirreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. And that is not surprising. All of the witnesses supporting the applicants are alreadypublicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes� vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

The likelihood of any “irreparable� harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience fromthe occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers arealready covering this trial and reporting in detail the names and testimony of all of the witnesses. I see no reason whythe incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.

Televising this trial would be the best way to educate the public about our court system, especially since this trial involves a constitutional issue on the legality of laws prohibiting same-sex marriage. Is this prohibition legal? In my opinion, it is not. But that is a topic for another day. The trend should not be to close off trial broadcasts, but to do it more often. What is the conservative Supreme Court majority thinking?

The news of the week is the Supreme Court's January 21 ruling in Citizens United v. Fedaral Election Commission. The Court said the First Amendment allows corporations to spend unlimited amounts of money on political campaigns. The decision overturns two Supreme Court precedents, one from 1990 and the other from 2003, and gives corporations more rights to influence campaigns than any ruling in history.

This opinion has come under fire as commentators suggest that corporations will drown out political opponents, and that our debased political culture will sink further into the sewer. The concern is also that the Supreme Court continues to believe that corporations are entitled to constitutional rights just as people are. There is enough commentary on these issues to go around for everyone, including an intellectually honest defense of the opinion from a constitutional lawyer.
Here is my take:

1. The conservative majority on the Supreme Court is taking an absolutist view on the First Amendment. The free speech clause of the Constitution is written in absolute terms ("Congress shall make no law ..."). But most constitutional provisions contain similar language, and those provisions are guided by balancing tests devised by the Court in order to ensure that the public's interest in civil liberties is balanced by the government's need to maintain order. The irony is that the Court takes an absolute view on the First Amendment when it comes to protecting corporate interests. This is not a coincidence, at least four Justices on the Court are hard-core conservatives, the product of the activist wing of the Republican Party. While the Supreme Court finds ways to limit the free speech rights of students, publicized trials and the rights of government whistleblowers, corporations have unlimited spending authority under the First Amendment despite Congressional findings that this kind of spending can interfere with the democratic process. Students can be suspended for speaking out of line in school or engaging in parody, and government workers can be fired for whistleblowing in certain instances, but if ExxonMobil wants to spend all its money on a political campaign to scuttle anti-global warming efforts, the government has no authority to reign it in.

2. In justifying its decision to overturn one of its prior rulings, Austin v. Michigan Chamber of Commerce, the current Supreme Court suggests Austin is outdated. Austin was decided by different Justices who have since been replaced by Republican appointees. The Court in Austin said that unlimited corporate spending on campaigns can have a distorting effect. The current Court says this about Austin:

Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.

Can you believe this? Thirty minute television advertisements are enough to educate the public on political candidates? This is the kind of reasoning from a Supreme Court that is now allowing corporations to spend unlimited monies on campaigns. No one ever learned anything from a television commercial. Which brings me to number 3.

3. Putting aside legal issues for a moment, the reason why campaign finance laws are beside the point is that the only reason we have to curtail spending on campaigns is because campaigns are so expensive. And the reason they are so expensive is that, in addition to large-scale campaigns which require employees and printing presses and other expenses, a good deal of the campaign money is directed toward television advertisements which teach us nothing and distort the issues and push voters toward the candidate with the slickest campaign strategy or multi-media visuals. If much of the public is undecided on a presidential campaign only a few weeks before the election, it is no wonder the ads become more and more offensive and misleading in the days leading up to the big day.

4. Another lesson from this decision is that presidential elections are even more important than we are giving them credit for. I have written about this before. If you hate this Court decision and do not think corporations should have unlimited spending authority in political campaigns, then remember that in 2012, when the next campaign rolls around. The President appoints Supreme Court Justices. This issue is downplayed during the campaign. But once the Justices join the Court, they stay on for life, issuing rulings that could violate everything you stand for. This was a 5-4 decision; it easily could have gone the other way. It did not, because President Bush appointed two men to the Court, both of them staunch conservatives. One of those Justices replaced Sandra Day O'Connor, who probably would not have voted with the majority on this one.

5. This brings us to my fifth point. Justice John Paul Stevens wrote a 90 page dissent. He is almost 90 years old. I would like to see men half his age write 90 page dissents. Justice Stevens is probably going to retire soon. He is also one of the best guys on the Court. Here is part of his opinion:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,� and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.� The Court today rejects a century of history when it treats the distinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law[.]

Do you feel like everything is going to crap? It is. A permanent conservative majority on the Supreme Court is no picnic for those of us who value civil liberties and a workable Constitution. The only guarantee that Obama can give us is Supreme Court appointments that do not further distort constitutional doctrine. There is no guarantee that any President will make a Court appointment. Obama has already appointed one. With Stevens close to retirement, he will probably appoint another. Stevens' replacement will not change the liberal-conservative balance on the Court. One of these days a conservative will retire. They can't serve forever.