We are heading into the first full Supreme Court term in 19 years with a new Chief Justice, John Roberts, who is sure to consider changing some of the Court’s policies. So it seems worth asking once again why the Court does not immediately release audio broadcasts of all oral arguments.
Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court’s Public Information Office said only that it was the Court’s “tradition” to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.
Listening to the arguments provides insight into how cases will likely be decided and perhaps even a view of how future cases presenting related issues will be resolved – information that is too important to be reserved to the handful of Supreme Court bar members who can make it into the courtroom. Although transcripts of oral arguments are published on the Supreme Court’s website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.
I was in the courtroom in 2002 for the oral argument debating the constitutionality of Virginia’s cross-burning law, and I can attest that only someone who heard the argument could have felt the power of Justice Clarence Thomas’ comments on the history of cross-burning, or understood the impact of his words on the justices’ view of that case. More generally, only those who hear the justices speak can detect sarcasm or disbelief in their voices, or know when they are truly asking questions and when they are making pronouncements about how the case should be decided.