It’s Time for the Supreme Court to be Heard

microphone.jpgWe 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.

Immediate release of audio tapes of oral arguments would greatly expand the accessibility of the Court to lawyers, students, teachers, and anyone else interested in the Court’s cases, especially those who might find it difficult to wade through dense legal briefs and opinions. Imagine if C-Span or other media outlets broadcast arguments the same day they occurred. Just as the televising of congressional proceedings brought Congress into American’s living rooms, so, too, could audio recordings enable the public to learn more about the activities of the Supreme Court.

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4 Responses

  1. heh says:

    Excellent post until the last sentence, which advances a poor precedent. Televising congressional proceedings may have “brought Congress into America[]’s living rooms,” but few would argue that it has enhanced the quality of congressional debate; most would argue quite the opposite. I certainly wouldn’t use that as an argument for earlier release of S. Ct. proceedings.

  2. Scott Moss says:

    It’s fair to criticize Congress (they sure deserve it), but I really don’t think TV ruined any golden era of serious deliberation, as this empirical study shows:

    # Senators Beaten Nearly To Death on the Senate Floor Before TV Invented: 1

    # After TV Invented: 0

    This reminds me of people complaining about how political campaigns have gotten so ugly due to TV, or blogs, or big money, or some other such villain of the month. Politics was FAR uglier and more corrupt from the 19th century through at least the 1920s than it is today, complete with false allegations of love children and drunkenness, flat-out purchasing of influence of the sort that would invite a special prosecutor today….

    In short, any failing of current politics (1) probably used to be worse and (2) isn’t the fault of new communications technology.

  3. Correctamundo says:

    # Presidents impeached for consorting with their interns before TV invented: 0

    # After TV invented: 1

    In short, if Scott Moss’ argument above is right, then TV has ruined the quality of our Presidents.

  4. Joe says:

    I support audio for the basic reasons put forth here. I do think media accounts, including by court watchers, did a decent job of suggesting the effects of Justice Thomas’ remarks. [Query: Did it really change votes?]

    And, one often can tell by the question (usefully, and remarkable for taking so long, transcripts now label the justices speaking) the nature of the question. Dahlia Lithwick also has done some good reporting in her Slate columns in fleshing out the personalities of orals.

    Still, this is an inexact science, and I don’t understand the point of not releasing audio ala the few times they did broadcast it on C-SPAN, having still pictures of the justices (and advocates) present when relevant.