Dahlia Lithwick, the resident attorney and legal theorist over at SLATE.COM published some anecdotes this week.

See Marshal, Marshal, Marshal - Scalia's goon squad
By Dahlia Lithwick - Posted Monday, April 12, 2004, at 1:38 PM PT – SLATE.COM

After a discussion of events in Hattiesburg, Mississippi last week ( see April 11, 2004 - You don't mess with Fat Tony.  - last week in Just Above Sunset ) where a deputy federal marshal at an Antonin Scalia speech forced two reporters to erase their recordings of Scalia's remarks, which was most likely unconstitutional and illegal - Lithwick notes the particular marshal involved now claims she was only following Scalia's orders, and even if those orders were unconstitutional or illegal, she really doesn’t believe she or her boss believe did anything wrong. 

Say what? 

Then Lithwick trots out her stories:

 

… the most interesting question of all, is who are these marshals, and who do they think they answer to? 

Some of the oddest conversations ever to be had in the United States of America are the ones between the reporters and marshals in the U.S. Supreme Court building.  They resemble nothing so much as those bizarre discussions you'd have with your mother about waiting half an hour between a hot dog and a swim—the ones that ended in, "Because I said so." I have had marshals in the court confiscate newspapers and books (including, once, Franz Kafka's The Trial) for no articulable or articulated reason.  I've seen them order the removal of neck scarves from some reporters, and head scarves from others, and I've seen them remove sketch artists in T-shirts.  I have seen them remove handicapped protesters crawling up the front steps of the court building, while refusing to cite any rule that prohibits such conduct.  These same marshals who demand a press badge to enter the courtroom, then march up during oral argument and ask that you not display it on your jacket.  Query them as to why you cannot display the same badge needed to enter the proceedings, and they tell you that 3-inch plastic badges distract the justices. 

I once watched a marshal confiscate a rather substantial piece of penis-shaped headgear from an appellant in a 9th Circuit appeal, in a case about unconstitutional censorship by local authorities who denied him the right to campaign for public office in his very large penis costume.  He was running under the name Dick Head.  At least one judge later wondered under what authority his costume had been ...  "apprehended" to quote the marshal.  But by then it was too late. 

The point here isn't that federal marshals are bad people.  Most of them are quite nice.  The point is that, unlike most federal and state officials, they simply don't believe they answer to any body of law—they are pretty certain that they answer only to the justices.  Imagine a police force answerable only to the mayor or federal prosecutors answerable only to John Ashcroft.  The marshals have gone from providing security to the justices to being the court's own private militia. 

The real problem highlighted by events in Hattiesburg isn't just that Scalia is paranoid or that he'd oddly prefer shaky handwritten notes of his speeches to accurate recordings.  The real problem is that there is a small army of state officials who don't seem to be playing by a rulebook.  They simply act at the caprice of our judges, and this should not be tolerated.

 

Really?  What would be the fun in that? 

  _____

Update at noon Pacific Time, Tuesday, April 13, 2004:

Scalia Apologizes for Erasure of Reporters' Tapes of Speech
Justice Vows to Permit Recordings by Print Journalists
Charles Lane, The Washington Post, Tuesday, April 13, 2004; Page A17

 

Supreme Court Justice Antonin Scalia has issued written apologies for the destruction of two reporters' audiotapes by a deputy U.S.  marshal in guarding him last week, and has promised to permit print journalists to record his public speeches in the future, according to a letter by the justice made public yesterday. 

In an April 9 letter to Lucy A.  Dalglish, executive director of the Reporters Committee for Freedom of the Press, which had protested the incident, Scalia said he had written to the two reporters, Antoinette Konz of the Hattiesburg American and Denise Grones of the Associated Press, "extending my apology and undertaking to revise my policy so as to permit recording for use of the print media."

Scalia called Dalglish's concern "well justified" and said he had been "as upset as you were" to learn of the deputy marshal's action, which, he said, "was not taken at my direction."

His letter was posted on the Internet yesterday by the Reporters Committee.  It was his first known response to the incident, which occurred April 7. 

 

The remainder of the item is a review of events. 

There is this, however:

 

It was unclear yesterday whether Scalia's apology and change in policy would satisfy his critics.  Though he indicated a willingness to let print reporters record his remarks for the sake of accurately quoting him, he rejected suggestions that he permit radio and television reporters to record his remarks for broadcast. 

"We greatly appreciate Justice Scalia's prompt response to our letter," Dalglish said in a written statement.  "However, we remain disappointed with his policy regarding electronic media coverage of his speeches, and hope he will reconsider."

Barbara Cochran, president of the Radio-Television News Directors Association, sent Scalia an open letter saying that his policy "discriminates against television and radio journalists, fosters less accurate reporting and undermines the principle at the very core of the First Amendment."

Frank Fisher, the Associated Press's Jackson, Miss., bureau chief, and Jon Broadbooks, executive editor of the Hattiesburg American, said their reporters had not received the letters from Scalia. 

Fisher and Broadbooks both used the word "gratified" to sum up their feelings about Scalia's apologies, but said the issue of the deputy U.S.  marshal's conduct remained unresolved.  Both news organizations have protested to federal authorities. 

"There is still the lingering question of why the marshal seized the recordings," Broadbooks said.  "We feel it was illegal."

 

Well, yeah.