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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 Northeast, 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 at 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 firsthand 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: 65% of the judges reported that the presence of electronic media had little or no effect on judges changing the emphasis or content of their questions. 74% said it had little or no disruptive effect on the proceedings. 58% said it had no, little or only some effect of causing attorneys to be more theatrical. Refuting the objections The objection that lawyers will grandstand for the cameras is refuted by the Judicial Conference study and is illogical. Lawyers representing a client before the Supreme Court have an audience of nine-the justices-and an ethical obligation to do their best to win the case through their sound arguments and cogent responses to their questions, not to promote themselves to a TV audience. Winning cases before the court is all that matters to the exclusive bar of Supreme Court advocates, not how they look on the evening news. The objection that tapes of the argument can be edited to give a distorted impression of the thinking or line of inquiry of a justice is actually an argument in favor of full, uninterrupted coverage of an argument, similar to C-Span coverage of Congress. If tapes of the argument are later shown in edited form, that is no different than reporters and commentators, both print and electronic, focusing on particular questions and responses in their reports on the case. The objection that members of the public won’t be able to understand much of what is going on demonstrates, as Floyd Abrams has said, a profound distrust of democracy. Lawyers should do away with opaque language and insider terminology and make the workings of the high court understandable to as many who take an interest as possible. The benefits of audio and video broadcasts of Supreme Court arguments to public education and understanding of our constitutional democracy would be immeasurable. David Drachsler is a retired U.S. Department of Labor attorney. He currently serves as vice chair of the Virginia Council on Human Rights and as a member of the board of directors of the American Civil Liberties Union of Virginia.

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