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TAPE DELAY The Supreme Court ended its oral argument calendar for the current term April 27. And with the end of arguments comes a dubious distinction: The entire term has gone by without the Court allowing quick release of the audiotapes of any of its oral arguments. Releasing argument tapes immediately for public use, instead of the usually months-long lag time, was an innovation launched at the time of the Florida election cases in 2000. It was greeted with universal approval on and off the bench. But because of a combination of Supreme Court resistance and media inattention, the innovation has fallen into disuse. Since the Court seems dead-set against allowing cameras in, the audiotape release seemed to many like the next best thing for now, allowing listeners to hear cases ranging from Bush v. Gore to the affirmative action case Grutter v. Bollinger within minutes of being argued. Tapes of seven separate cases were quick-released in 2003 and early 2004. But none at all were released this term, which began last October. If you want to hear the arguments in the Ten Commandments cases, or the juvenile death penalty case, or the Grokster copyright case, check back at the National Archives in November or so, when the glacially slow process of transferring the tapes from the Court is done. The silence this term is all the more remarkable because the Court itself seems to like the quick-release option. During the historic televised conversation between Justices Sandra Day O’Connor, Antonin Scalia, and Stephen Breyer at the archives on April 21, all three commented favorably on the practice. “The audio release has worked pretty well,” said O’Connor. Breyer described it as a first step in a cautious journey toward greater openness, and Scalia’s only negative note was to wonder why immediate release is so highly prized by the media, whereas a tape released the next day “is used for wrapping fish.” So why didn’t it happen at all this term? Court Public Information Officer Kathy Arberg, who receives media requests for the release of tapes, declines to comment. But it appears from other sources that the media sought release of argument tapes only twice this term: for Roper v. Simmons, the death penalty case argued Oct. 13, and for Van Orden v. Perry and McCreary County v. ACLU of Kentucky, the two Ten Commandments cases argued March 2. Both requests came from C-SPAN, which in the past has aired argument tapes on its radio outlet as well as on its cable television channels, supplemented with still photos of the justices and lawyers speaking. Despite intense media interest, no one apparently bothered to ask for quick release in Grokster or any other case this term. Both of C-SPAN’s requests were denied in letters from Arberg telling the network that the Court had determined that the “heightened public interest” that preceded tape releases in the past “has not been demonstrated.” That verdict is especially hard to fathom in the Ten Commandments cases, which received intense media and public scrutiny and drew government intervention. So how does the Court define “heightened public interest” in a way that would not include the Ten Commandments cases? Has it suddenly raised the bar? Court officials would not answer. But it is likely that the fact that C-SPAN was the only news organization that asked was a factor � though it is not clear how many other requests would have been enough to get the Court’s attention. The other factors are unknown and seemingly unknowable. But it also seems clear that the Court won’t consider releasing tapes at all if no one asks � even though it could survey the landscape and determine on its own that its standards for high public interest have been met. So, for example, Grokster was not even considered for early release, because no one in the media bothered to request it. “It was a real shame in the Grokster case,” says Jerry Goldman, the Northwestern University professor who runs the Oyez Web site, which posts Supreme Court audiotapes as soon as they are available. “I got countless requests from people wanting to know when they could hear the arguments, and I got even more when the transcripts were released.” The Court now routinely puts oral argument transcripts on its Web site, complete with the names of the justices asking the questions, about 10 days after the arguments. “It was like reading the libretto of an opera without hearing the music,” says Goldman. Terry Murphy, C-SPAN’s vice president for programming, also laments the Court’s actions this term. “We’re disappointed, and we really don’t know why these cases did not meet the Court’s definition,” says Murphy. “Of course, our philosophy is that all the Supreme Court’s cases meet that test.” WALKING THE LINE In case one is needed, here is another indicator of how much interest there was in MGM Studios v. Grokster, the copyright dispute over the peer-to-peer downloading of movies and music. Lawyers who attended the arguments � or tried to � are still talking about the extreme tactics used to get seats inside the Court the morning of March 29. One D.C. lawyer who got to the Court at 7:25 a.m. � usually in plenty of time for an argument beginning at 10 a.m. � arrived to an unusual sight: close to 40 line-sitters (or line-standers), paid to stand on line for later-arriving lawyers who wanted seats in the section reserved for members of the Supreme Court Bar. The word along the line was that the line-sitters had been there since 4 a.m. or earlier and were being paid $100 or more by the Motion Picture Association of America; a report in Wired News suggested some were paid as much as $500. How could this lawyer tell the people on line were nonlawyers? “Put it this way: They did not look like lawyers about to go into the Supreme Court,” says the lawyer, who spoke on condition of anonymity. Sure enough, a few minutes after he arrived, there was a “changing of the guard,” as the real seat-seeking lawyers showed up and took their spots in line, replacing the line-sitters. An hour later, when all the lawyers were allowed to come into the Court, it turned out that the lawyers who had hired line-sitters took up all the seats in the bar section of the Court. All others had to sit in the lawyers’ lounge, which is not far from the courtroom, but offers no view of the arguments, only piped-in audio. MPAA spokesman John Feehey confirmed that his organization had hired line-sitters for the argument, but he did not know how many or at what cost. He did say he was sure that MPAA was not the only organization that did it. “Line-sitting is a tradition almost as old as the Supreme Court,” says Feehey. “It happens all over Washington,” including the Court. There is no Court rule explicitly prohibiting line-sitting, but the Court’s guide for visitors, available on its Web site, offers this exhortation: “Please do not hold a space in . . . line for others who have not yet arrived.” Says the lawyer who was shut out by the line-sitters: “Some of us thought of complaining” based on that sentence in the visitor’s guide, “but I’m not sure if that’s the kind of complaint the Court would want to hear.” COIN OF THE REALM There are a number of postage stamps bearing the images of Supreme Court justices � most recently the late Thurgood Marshall. And there’s even a justice who appears on paper currency; Salmon Chase graces the rare $10,000 bill, but because he was secretary of the treasury, not to commemorate his service on the Court. But until now, no U.S. coin has ever honored a Supreme Court justice or the Court itself. The John Marshall commemorative silver dollar went on sale April 15 and will be unveiled at a ceremony at the Court on May 4. The coin, timed to mark Marshall’s 250th birthday in September, is the result of an act of Congress passed last year at the urging of Chief Justice William Rehnquist and the Supreme Court Historical Society. “It’s long overdue,” says the society’s executive director, David Pride. “John Marshall is probably the greatest luminary in American law.” Marshall was the fourth chief justice and the one who, with his decision in Marbury v. Madison, established the Court’s role in the system of checks and balances. A numismatist himself, Rehnquist selected the design for the front of the coin, based on a contemporary portrait of Marshall, and the reverse as well � a depiction of the old Court chamber in the Capitol. The ailing Rehnquist will not be attending the ceremony, but Justice Stephen Breyer will speak, as will the director of the U.S. Mint, Henrietta Holsman Fore, and Historical Society President Frank Jones. The Historical Society stands to gain $2 million to $4 million from the sale of the 400,000 Marshall coins, which will go for under $40 each. Under the law approving the coin, the mint must first recoup its costs, but after that, the proceeds will go to the society for its educational programs, acquisitions, and for the Supreme Court fellows program. GREENHOUSE EFFECT It’s a rare book party that draws a single Supreme Court justice, but at a Capitol Hill reception for a new author April 25, four justices were sighted: Sandra Day O’Connor, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. They and dozens of other members of the Supreme Court community were on hand to mark the publication of New York Times reporter Linda Greenhouse’s new book Becoming Justice Blackmun, which is based on the papers of the late Justice Harry Blackmun. The reception was hosted by James Swanson, the Heritage Foundation senior legal scholar whose home has become something of a salon for law-related authors. Several months ago, he toasted Geoffrey Stone’s book on the First Amendment, and later in May he will hold a party for a new biography of former Attorney General Edwin Meese III. The Pulitzer Prize-winning Greenhouse confessed it was her first book party. She told the guests she was lucky to have been given early access to Blackmun’s voluminous papers in advance of their public release in March 2004, placing before her “an amazing chronicle of an American life.” Former Acting Solicitor General Walter Dellinger III also made remarks, praising Greenhouse’s book and reportage, and obliquely taking a swipe at a recent magazine article that painted a different picture of Blackmun: David Garrow’s piece in Legal Affairs criticizing Blackmun as overly dependent on his law clerks. Dellinger recalled the assertive memos he himself wrote as a clerk to the late Justice Hugo Black, but said the tone did not mean that he was telling his justice what to do. “It’s the causal connection that’s missing,” said Dellinger, who applauded Greenhouse for not succumbing to the same “false cynicism” that he felt Garrow’s article reflected. Tony Mauro can be contacted at [email protected].

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