The U.S. Supreme Court has steadfastly refused to permit live audio broadcasts of its proceedings or any video, live or delayed. Rather than routinely rejecting this idea, the Supreme Court should experiment for a few years with live audio broadcasts of the one or two most significant arguments of each term, such as the partial-birth abortion law challenges.
By David Drachsler/Special to The National Law Journal|October 25, 2006 at 12:00 AM|The original version of this story was published on National Law Journal
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The U.S. Supreme Court announced recently that, for the first time, it will make transcripts of oral arguments available for free on its Web site on the same day the argument is held. These transcripts also for the first time will identify which justice is asking a question. Until now, the court only made transcripts available for free on its Web site two weeks after the argument; only those who were willing and able to pay hundreds of dollars to the court reporting company, typically a few law firms, could gain immediate access to the transcripts. On rare occasions, such as after Bush v. Gore or the Michigan affirmative action cases, the court has released same-day audiotapes of arguments. Almost every term, at least one case of great significance and widespread public interest is heard and decided by the court. On Nov. 8, the Supreme Court will hear arguments in two cases challenging the Partial-Birth Abortion Ban Act of 2003. If experience is any guide, the sidewalks on First Street, NE, will be packed with members of the public hoping for a chance to get a seat in the courtroom (there are only about 200 seats for the general public.) Around the corner, on Maryland Avenue, members of the Supreme Court Bar will form a line at the side entrance to the court probably starting around 6 or 6:30 a.m.; the arguments begin at 10. Anyone who arrives after 7 will stand little if any chance of getting in. Guests of the justices and members of the press, of course, are guaranteed a seat. Thus, about 300 people out of a nation of 300 million will get to see and hear first hand the proceedings of the institution at the apex of one of the three major branches of our government on one of the most closely watched cases of our time. The court has steadfastly refused to permit live audio broadcasts of its proceedings or any video, live or delayed. Rather than routinely rejecting this idea, the Supreme Court should experiment for a few years with live audio broadcasts of the one or two most significant arguments of each term, such as the partial-birth abortion law challenges. The difference between this and release of same-day audio tapes is small and as a pilot program, it could be halted immediately if significant problems develop. If there are no untoward results, the court could try delayed video of some important arguments and, if that is successful, move to live video of the landmark cases. Several arguments have been made against allowing live audio or any video of the court’s proceedings. Some of the principal objections are: The lawyers will “grandstand” for the microphones or cameras, which will trivialize the system and erode respect for the courts; tapes can be edited so that there could be a distorted impression of the thrust of a justice’s questions, i.e., that he or she was more hostile to one side than another; and it would be almost impossible for the average American to understand the arguments. When carefully examined, these arguments do not stand up to scrutiny. Right now, 48 states allow the televising of appellate proceedings. In addition, the Judicial Conference of the United States carried out a three-year pilot program of allowing electronic media in trial and appellate proceedings a number of years ago. Electronic media were permitted in six federal district courts and two federal appellate courts. One of the study’s key findings was that the presence of electronic media “did not disrupt court proceedings, affect participants in the proceedings, or interfere with the administration of justice.” A survey of appellate judges participating in the pilot program yielded some information particularly relevant to some of the objections raised by opponents of electronic media in the Supreme Court:
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