By Ruth Marcus
The public is 0 for 7 at the Supreme Court this term.
That tally doesn’t involve the justices’ votes on cases. It’s the number of times that the court has been asked (seven) and agreed (zero) to release same-day audio recordings of oral arguments in important cases.
Yes, audio recordings. In the age of Twitter and video-chats, the court apparently still finds that allowing the public to hear audio of its proceedings would be overly intrusive.
We’re not talking television cameras here, folks. The only question is whether news organizations will be able to use tapes of oral arguments—tapes that are being made in any event and will be released eventually—on the same day the arguments take place.
The latest rejection came when the court turned down a request by C-SPAN, ABC, CNN and Fox News in a case, to be argued Monday, about whether a public law school can deny funding to a student group that requires its members to adhere to its religious beliefs.
If there is a rational basis, as the lawyers like to say, for refusing to release the audio in this case, I’d like to hear it. Television cameras are said to be too distracting and too much of an imposition on justices’ privacy. I disagree, as does a majority of the public; in a poll conducted last year for C-SPAN, 61 percent backed televising Supreme Court proceedings. In any event, the same arguments have even less validity in regard to audio recordings.
Another anti-TV argument is that the snippets would be too susceptible to being misused in 30-second sound bites. OK, but for all those picture-worth-a-thousand-words reasons, audio doesn’t seem to me to pose the same risk—if that risk even exists. This argument—again, as the lawyers like to say—proves too much: If there is a problem with words being taken out of context, isn’t that true of print or broadcast reporters reduced to quoting the justices’ words? Isn’t the risk of being misquoted—not getting the words wrong but missing the underlying meaning—less when the actual sound is available? Any decent lawyer can tell you that the cold transcript of a proceeding is a poor substitute.
In fact, there is a record before the court on which to judge whether releasing audio recordings poses any problem. The court got one thing right in Bush v. Gore: It allowed audio of the oral arguments to be broadcast later that day. Since then, news organizations have asked for same-day audio in 44 cases; their requests have been granted in 19 more, according to statistics compiled by the folks at C-SPAN. This hardly seems to be an unmanageable flood of requests.
Unfortunately, the court has been heading in the wrong direction under Chief Justice John Roberts. Of the 11 requests made to the court under Chief Justice William Rehnquist, nine were granted. The Roberts court has approved only 12 of 35 requests. Last year, audio was released for just two arguments (the big campaign finance case, Citizens United, and a major voting-rights dispute).
Perhaps the court doesn’t want to be in the position of deciding which cases rise to the level of heightened public importance. Here’s an easy way out of having to make that judgment: Release audio for all arguments. Yes, releasing audio has been the exception, not the rule. But then again, it wasn’t until recently that the court made it a practice of providing same-day transcripts of decisions. Things change, even at the Supreme Court. Technology makes this a pretty simple transaction.
Too radical? Here’s another solution: Release audio in a predetermined number of cases every year. Let the networks decide among themselves which to ask for so the court isn’t in the position of choosing. Or make the determination based on the number of friend-of-the-court briefs the cases attract.
The chief justice famously described the role of the judge as that of an umpire calling balls and strikes. Why would he want to deny the public the benefit of at least hearing the game in progress?
Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.
© 2010, Washington Post Writers Group