The intense oral arguments in the Supreme Court Voting Rights Act case Shelby County v. Holder on Wednesday, February 27, drew unusually wide interest from the news media. But until Friday March 1, the coverage was missing a key element: the actual audio of what the justices and advocates said.
That is because, without any public announcement or stated reasoning, the court had rejected the request made beforehand by several media organizations for same-day release of the argument audio. Associated Press and NBC had asked, citing the high public interest in the arguments, but were turned down.
The court is weighing a similar request for instant release of the audio of arguments later this month in the even more high-profile same-sex marriage cases, Hollingsworth v. Perry and Windsor v. U.S. CNN and C-SPAN as well as AP and NBC have expressed interest in the audio for those audio to the court.
"We would like all of the audio released on the same day," said C-SPAN vice president Terry Murphy. "But since that is not the court’s policy, we are trying to be selective so we don’t bombard the court with requests. But we don’t know the criteria the court is using."
Media organizations have been operating without a road map on the best way to make these approaches ever since the court promulgated a new policy more than two years ago. Starting in 2000, the court had allowed the same-day release of audio, with varying degrees of frequency, of high-interest arguments—including the 2009 pre-cursor to the Shelby County case, Northwest Austin Municipal Utility District Number One v. Holder.
But the court in September 2010 announced a change. From then on, the court said the audio of all arguments would be released on Friday of the week in which they occurred – making it of little use for journalists who produce same-day reports on the arguments. With rare exceptions, the court hears arguments only on Mondays, Tuesday and Wednesdays.
In March 2012, however, the court responded to requests and allowed release of the audio for the three days of argument in the health care cases. Citing the "extraordinary public interest" in those cases, the court allowed same-day release of the audio, which broadcasters used extensively in their news reports.
Other than the court’s mention of the public interest in those cases, the criteria for making exceptions was and still is unclear. One consideration—though apparently not decisive—may be the actual interest expressed by the news media in attending the arguments. For the Affordable Care Act cases, 118 reporters and sketch artists were allowed in the court, with even more listening to an audio feed at the public information office. For the Shelby County case, only 80 reporters requested seats.
Nonetheless, the comments and exchanges made in the Voting Rights Act case got an unusual amount of attention. Justice Antonin Scalia’s statement that Section 5 of the law amounted to a "racial entitlement" was widely scorned, and questioning by justices Sonia Sotomayor, Anthony Kennedy and Elena Kagan was dissected for its meaning.
Once the audio was released on Friday, there was still enough interest in what was said that several broadcast outlets aired reports using the voices of the justices. But that is very rare, and broadcasters would still like the audio released same-day.
"We would have been able to put all of the comments in context if it had been released on Wednesday," said Murphy.
Broadcasters also sometimes make pro forma requests for videotaping of the arguments as well, even though the justices’ stubborn refusal to allow cameras in the court is unlikely to change anytime soon.
Tony Mauro can be contacted at firstname.lastname@example.org.