Orin Kerr counters Dahlia Lithwick:
Lawsuits challenging the constitutionality of high-profile and controversial laws are often part lawsuit and part plaintiffs’ public-relations campaign. The plaintiffs pick the forum, draft the complaint, pick the timing, and pick their witnesses. The plaintiffs shape the litigation so that it puts their case forward in the best possible light. In that environment, the plaintiffs will almost always want the case televised. Defenders of the law will almost always object.
It’s not about constitutional theory, but about designing a p.r.-friendly case and hoping it gets a lot of public attention — or, if you’re representing the defendant, hoping it doesn’t. There’s nothing hypocritical about either position.
From his closing paragraph:
What would be inconsistent is having different views of whether the same-sex marriage trial and the hypothetical affirmative action trial should be broadcast. It seems to me that we need a consistent answer for what to do with that kind of case: Either broadcast them both or broadcast neither.
The Dish 