Musings on the Constitution-LXV Narasimhan VijayaraghavanNot to test the patience of the readier, possibly captive audience on the mail trail, already impacted by the tentacles of the Pandemic virus, refusing to be even flattened, leave alone vanquished, this author now has reached the doorstep of the Supreme Court of India, to explore

Musings on the Constitution-LXV
Narasimhan Not to test the patience of the readier, possibly captive audience on the mail trail, already impacted by the tentacles of the Pandemic virus, refusing to be even flattened, leave alone vanquished, this author now has reached the doorstep of the Supreme Court of India, to explore

Not to test the patience of the readier, possibly captive audience on the mail trail, already impacted by the tentacles of the Pandemic virus, refusing to be even flattened, leave alone vanquished, this author now has reached the doorstep of the Supreme Court of India, to explore how they viewed the Debates in the Constituent Assembly Debates. A short detour to the United States on the SCOTUS reference to the Federalist Papers may not be a digression. For the similarities are quite striking.

Chief Justice John Marshall

We need not advert to many. It may suffice to allude to one in Printz vs United States of rather recent vintage- June 27,1997. Without getting technical or indulging in legalese, it is noted that it was a majority verdict of 5:4. Interestingly, majority opinion of Justice Antonin Scalia referred to and relied extensively on the Federalist Papers akin to our Debates in the Constituent Assembly, to ‘clinch the question’ as he put it. Equally, David Souter in his dissent for the minority also referred to and relied on the Federalist papers. In fact, the relevant portions of the same paper or altogether different Papers to buttress their respective decisions make fascinating reading. Both of the Judges, ones in the majority and minority felt, believed and observed historical antiquity was no reason to ‘reject the Federalist Papers to decide issues arising in the now’. Scalia the Textualist and Originalist refused to go ‘expansive’. Souter, also a conservative until he became a Justice chose to be ‘practical and pragmatic’.

These Are the Only Two Photos of the US Supreme Court in Session

Did you know that there are only two known photos in existence that show the US Supreme Court in session? Cameras have long been banned inside the courtroom, so the only two photos were captured many decades ago by people who snuck camera in. The first photo, shown above, was shot in 1932 by a German photographer named Erich Salomon. Salomon was hired by Fortune magazine to shoot images during a tour of America.
The photographer decided to sneak a camera into the Supreme Court by faking that he had a broken arm so that he could hide his camera inside his sling. Salomon was able to snap a stealthy photo, which was later published in Fortune and touted as the first photo ever made showing the court in session.Five years later, in 1937, a young woman managed to shoot this second photo of the Supreme Court in session:

The photo was published in the June 7, 1937, edition of Time magazine, within an article titled Judiciary: Farewell Appearance.Time wrote at the time that the photo was taken by “an enterprising amateur, a young woman who concealed her small camera in her handbag, cutting a hole through which the lens peeped, resembling an ornament. She practiced shooting from the hip, without using the camera’s finder which was inside the purse.
The photographer was never named and remains a mystery. The photo was also the first and only time all 9 justices of the court were captured in the same photo in session.
There are mentions of a third photo of the Supreme court in session that was captured and published around the same time, but there does not appear to be any surviving record of that image .Fast forward 77 years. In 2014, an advocacy group snuck a camera into the Supreme Court and filmed the first-ever footage of the US Supreme Court in session. They captured a video that’s about 2-minutes long :The Supreme Court has officially banned cameras since 1946 when Federal Rule 53 was enacted. It reads:
“Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
Supreme Court justices have long been opposed to cameras in the courtroom, arguing that adversely impact the dynamic of the proceedings. In recent years, however, a number of justices have warmed up to the idea of cameras in the courtroom, possibly paving the way for a rule change in the future.
However, SCOTUS allows Audio taping of the oral arguments and used to release them within a few days of conclusion of the hearings. Now, in these Global Pandemic times, we had the benefit of a live audio hearing when the Judges and the lawyers arguing were sitting in different places. In fact, as it was during these biral times ‘ the hearings went on far longer than the Judges may have otherwise tolerated, said Neal Katyal ( who aciting Solicitor General during the end years of Barack Obama administration) , an Indian born US constitutional lawyer of eminence today.
But our Supreme Court has still not warmed up to the idea of even audio recordings. It does appear that the apex court has suggested allowing live videos into court halls for important cases and rules may well get framed for it. Interestingly, with the Pandemic in our midst the cameras have gone into the court halls and chambers of various High Courts and even the Supreme Court on the Videoconferencing platform. Time is a leveller. Heaven has not fallen down because of the cameras entering the court halls. Hopw the law lords pivot from the present and if not a gavel to gavel telecast- two minute takeaways- may enhance the access of justice to the people. There is always the flip side as Justice Antonin Scalia warned, “ the two bit sensationalism may detract from the seriousness of the debates’. Let us take the good with the bad as nothing either in full.

To get back on tract. both Justice Scalia’s majority opinion and Justice Souter’s dissent focused on the language of various papers in ‘The Federalist’ in a way that can best be described as the historical record equivalent of statutory interpretation. Justice Scalia’s word-for-word discussion of these early attempts to convince fence sitters in New York to vote to ratify the proposed Constitution covers some six pages of the United States Reports. Justice Souter’s equally detailed discussion covers the same number of pages. Historically, SCOTUS indulged in the Federalist Papers for reference even as early as in 1798, and after the legendary John Marshall (author of the unanimous Marbury vs Madison verdict upholding the power of judicial review of Congressional statutes akin to our Art.13 jurisprudence) took over,

Marbury v. Madison
Argued February 11, 1803
Decided February 24, 1803

Federalist papers became front and centre in ‘debates before the courts’. Curiously however, in over hundred years, it seemed as if ‘the Federalist papers were winning only in dissent and rarely in the majority opinions’, as a constitutional professor observes.

It is really amazing that research on such specialised facets are so pointed and detailed in the US of A . The deep end of the study is stunning to say the list. The era of each Chief Justice of SCOTUS (it being a life time appointment) is analysed for the number of verdicts in which Federalist Papers were considered, relied on or not agreed with and there is a data based conclusion of algorithmic proportions. If these numbers are crunched, probably the academicians and professors can second guess which way the Judges are likely to go.

It may suffice to just allude to a few of the findings from just one study in Melvyn R. Durchslag’s, The Supreme Court and the Federalist Papers: Is There Less Here Than Meets the Eye? For our fleeting purpose.

“The citations to The Federalist Papers increased significantly during the “Roosevelt Court” years despite the fact that this period covered twenty fewer years than the previous period. The Federalist Papers appeared, in one way or another, in twenty-six cases, a 53 percent increase. They also appeared in twenty-eight opinions, a 40 percent increase. Somewhat surprising is that only twelve of the twenty-eight opinions (43 percent) were majority opinions. Four were concurring opinions and eleven (39 percent) were dissents. In the previous period (1900-1937), 75 percent were majority opinions, as well as 75 percent in the period previous to that (1865-1900)….. A review of the cases reveals, however, that the frequency of citations to The Federalist Papers or the……”

(Author is practising advocate in the Madras High Court)

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