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Same-Day Release of Supreme Court Arguments:
I enjoyed listening to the oral arguments in the Solomon Amendment case this week, and the thought occurred to me: Why don't the Justices permit the same-day release of audio recordings for all of their arguments?

  I can understand why the Justices don't want oral arguments televised (not to say I'm convinced, but I do understand the concern). But sound-only recordings generally don't raise the same problems. And for Supreme Court buffs, the audio is just as good; video adds little if any substance, at least as soon as you are familiar enough with the Justices to recognize their voices. Oral arguments have been taped for decades and get released eventually, so why not release the audio on the day of the argument when the public is most interested?
Senor Chumbawumba (mail):
To quote an unnamed British MP, hear hear.
12.8.2005 12:01pm
Goober (mail):
Maybe it's because they want any TV reporters doing stories on the cases actually to have to listen to the arguments.
12.8.2005 12:27pm
Attila (Pillage Idiot) (mail) (www):
Excellent idea. Some circuits post the tape of their arguments the same day: 7th, 8th, and I think 9th.
12.8.2005 12:50pm
anonymous user:
I don't see any practical reason to not allow it, when the public can go and watch any day that they want. It just keeps me from having to go to the actual court. I would think it would open up awareness and make for a more informed public. It is easier to get the layman to listen to the argument while it is hot and fresh in the news as opposed to so many weeks/months later when it may be reduced to a blurb.
12.8.2005 12:51pm
nc_litigator (mail):
there could be direct quotes from justices taken out of context and played on the radio, whether it be regular news, npr, or limbaugh. a dumb quote by some justice could become as famous as Howard Dean's YEEARRGGHHH (though i have never witnessed a YEEARRGGHH at the supreme court).
12.8.2005 12:55pm
countertop (mail):
NC Litigator -

Its not really the dumb quote taken out of context that I think is the fear, but rather the probing hypothetical question that may not be reality based but is used to draw an argument out to its logical conclusion. I can just imagine something like that - especially in a case like RvW - being butchered and taken out of context and used to make a mockery of the system (by both sides) and create a false sense of what the court actually believes for purely partisan political gain with little public benefit.

Its a real threat in the evening news and the cable talking head shows - but less of a threat for most day to day cases when the audio is generally released months later and interest has died down.
12.8.2005 1:05pm
nc_litigator (mail):
countertop -- good points.

i can imagine political ads taken out before an election -- "And what did George Bush's appointee John Roberts say about Issue X just this week?" [clip] "Are those the kind of justices you want appointed to the supreme court?"
12.8.2005 1:31pm
ed:
so why not release the audio on the day of the argument when the public is most interested?

I think this question answers itself: the Court prefers, as a general and historic matter, to limit public scrutiny of everything but its final output. Releasing oral arguments after the public has become less interested ensures relatively less such scrutiny.

I wonder, though, if this isn't more a matter of inertia/tradition than any currently salient concerns, hence the occasional rapid release of argument tapes in very high-profile cases. Time to normalize the practice and get them all out same day if not real time.
12.8.2005 1:33pm
AE:
If the Court's rationale for delaying the release is a concern about the use of the audio by the media, then it is odd that the Court tends to release the audio for the more publicized cases quickly.
12.8.2005 1:53pm
John Steele (mail):
I'd like to see live, public domain feeds during the argument itself. However, I will offer this weak defense of the current policy. I think that journalists and academics sometimes misunderstand the legal system's stubborn, conservative instinct for keeping litigation low key. It doesn't stem from mere self-protection or arrogance, in my view. It stems from the underlying need to resolve disputes and put them to bed rather than spawn new disputes. I'd never say that you have to be a litigator or judge to understand that need, but it sure helps.

In this case, that conservative instinct is suppressing useful information that wouldn't serve to politicize the court, inflame diputes, or lead to collateral litigation and chaos.
12.8.2005 2:00pm
anonymous user:
It seems like a bad rationalization here. They are worried that people don't understand their process enough. They fear that because of this what they say will be taken out of context. I would think that more openness in the process allowing free debate would create more knowledge. I would think that responding to these fears by keeping things more private and deflecting issuance until interest dies down is just trying to hide the ball. This is a branch of our government and we the people should be able to see them operate. I remember when people were arguing over cameras in our legislative branch.
12.8.2005 2:53pm
speedwell (mail):
As "they" say when gutting our Fourth Amendment and privacy rights:

What are they afraid of, if they aren't doing anything wrong?
12.8.2005 3:19pm
SacSays (mail):
CSPAN has a nice solution for t who are not familiar with each justice. Their audio has pictures of the justice speaking, and even photos of the lawyers.
12.8.2005 3:50pm
Splunge (mail):
I remember when people were arguing over cameras in our legislative branch.

Oh, and that worked out great, didn't it? Enjoying our government by soundbite, are we? The fact that legislators spend more time grandstanding for TV cameras than they do hammering out unpleasant but workable compromises? That we now turn to our Imperial Presidency (or the Governator, in California) to solve all the knotty problems that should have been solved by some necessary if nasty horse-trading in a smoke-filled room? Ye gods.

Geez, if the questions before the Supreme Court could and should be readily judged by random joes and janes watching from home, then why have a Court of learned men at all? Why not just turn it into the SCOTUS Reality Show, where you, the viewers, decide from home by phoning in your vote which contestant goes to jail and which gets to set a new Constitutional precedent?

Just because the Court is ultimately answerable to the people does not mean it's a good idea that it be immediately answerable. The Founders were thinking clearly when they put in all kinds of delays and hurdles to the full exercise of popular sovereignty. They knew this was a recipe for instability. And if anyone needs convincing, California's initiative process should provide sobering evidence of the proposition.

Does this sound a touch hysterical? Let me adduce Eugene's slippery-slope argument about gun control. Sure, all we're interested in is just seeing how the justices argue. We wouldn't dream of suggesting that they, well, just take into account while deciding cases the storm of public reaction to what's being shown on Supreme Court TV. No, no, that's just paranoid thinking.
12.8.2005 4:39pm
Jay Goodman Tamboli (mail) (www):
If I remember correctly, Justice Breyer was asked this question. He seemed to indicate that it is technically difficult to release the tapes immediately. They might be making moves to upgrade their systems (pure speculation on my part), but right now it's not easy, so they don't do it often.

I've often wondered how they record the arguments. Most of the replays I've heard have sounded slowed down a bit, though the replay of Gonzales v. Raich I heard sounded sped up. When the recordings are released, I believe the audio is played back over an audio system in the Capitol, and media are allowed to record it, so no one actually gets to see the equipment.

I'd love to have live, streaming audio of oral arguments myself.
12.8.2005 6:35pm
William Baude (mail) (www):
I thought I remember the Court saying at some point that it didn't want people to be confused and think that the orgal arguments were important, so immediate release of the oral arguments created a misleading impression of how the court made its decisions. I don't remember where I saw that.

What I want to know is why the court won't at the very least release the audio of the justices reading their opinions and dissents aloud. It's silly that court nerds have to sit around hitting "reload" on the AP website rather than being able to hear the justices announce their opinions in real time.
12.9.2005 12:25am
Jam (mail):
It is high time that the SCOTUS have a live video/audio feed available to all media. Any concern about changing "future" justices behavior because of cameras is nothing but self-condemnation.

Let us all see about the "pomp and circumtance" that is placed above real Constitutional inspection.

Where can I find audio of SCOTUS oral arguments?
12.9.2005 9:40am