The beginning of the end, and televising the Prop 8 trial

My final semester of law school began this week. It feels a bit surreal to know that, to know that in a few months the people I've grown accustomed to seeing in the halls will be on their way to jobs at law firms across the country, clerking for judges, or moving back in with their parents (as I may do myself, sorry Mom and Dad). But here we are, not quite sure why we're taking classes like Selected Topics in Corporate Governance, Natural Resources Law and Legislative Redistricting, except that we need the credits to graduate. My schedule is a healthy mix of practical lawyering skills and abstract curiosity satiation:

• Philosophy of Law: Is there a moral duty to obey the law? What is the essence of a law
• Domestic Violence Clinic: seeking protective orders for victims of domestic abuse
• Law & Literature: essentially a book club in which we read four novels, and meet with food and wine at a prof's house to discuss them
• An externship with a local public defender's office: hoping to do a ride-along with the police department!
• Trial Advocacy: running through all the steps of a mock trial
• Select Topics in Criminal Justice Seminar: comparing how different common law countries handle criminal justice issues differently, such as police interrogation, equal protection, punishment, sentencing, etc.

Many of us are still job-hunting, of course. Having read an article that says this is the worst legal job market since the Great Depression, though, I'm not stressing too much about it, except that I'm not quite sure where to take the Bar exam. Oh well. Good things come to those who wait.

I want to comment on a frustrating decision the U.S. Supreme Court handed down yesterday. A pair of California lesbians filed suit in federal court, challenging the constitutionality of Proposition 8, the 2008 referendum that made same-sex marriage illegal in California. The women's lawyers are David Boies and Ted Olson, two of the most experienced Supreme Court advocates in the country, who just happened to argue both sides of Bush v. Gore back in 2000 — against each other (Olson argued for Bush, Boies for Gore). Olson, a well-known Republican conservative, believes that people like him should start accepting gay marriage, and he feels passionate enough about it that he's willing to take this case all the way to the Supreme Court.

The federal judge presiding over the trial, which started Monday, agreed with the plaintiffs' request to put each day's proceedings on YouTube after court ended for the day. This was an unprecedented step for a federal judge, and a fantastic one. We expect openness from the executive and legislative branches of government (C-Span and C-Span 2 are good examples) and though we don't always get transparency, we're at least frustrated by it. The judiciary, however, has gotten away with largely shutting us out, and we don't even make them apologize for it. We give federal judges the ability to open civil trials by putting broadcasts of the proceedings online. (Criminal trials are quite different, because of defendants' rights, and would command a more careful set of broadcasting rules.)

The defendants objected to the webcasts (why? are they afraid they'll look bad?) and eventually appealed to the Supreme Court, which on Monday issued a temporary stay, preventing the webcasts until it had time to make a more informed decision. The Court issued that "more informed" decision yesterday, blocking the YouTube webcasts for the remainder of the trial. The Court did not say, however, that broadcasting is a bad idea, or that it would offend some constitutional right of the defendants (it wouldn't). The Court merely said that the federal judge may have violated a federal statute by not providing enough time for public comment on his decision to change a local rule and allow the broadcasts.

If this decision seems downright silly, it's because the judge did allow a couple of days of public comment and during that time, he received nearly 139,000 comments. Of those, all but 32 were in favor of televising the Prop 8 trial. Would more time have yielded more negative comments? Probably. Would it have yielded exponentially more positive comments? I think it's likely. The public favors openness.

The Supreme Court's (unsigned) decision blocking the broadcast of the trial was 5-4, with the conservative members in the majority and the more liberal members dissenting. I'm optimistic that in time, the Court will change its mind about broadcasting federal civil proceedings. When it comes time to decide the merits of this issue, I hope that at least one of the conservative justices will change his mind.