Some of the most memorable moments from the U.S. Supreme Court’s official proceedings are the ones that the justices seem least interested in making public. They are the often dramatic, sometimes funny, always instructive occasions when justices announce from the bench, in summary form, the opinions of the court.
The court makes the actual opinions public almost instantaneously online. But the audio of the opinion announcements takes months to see the light of day, even though the court makes the audio of oral arguments available to the public at the end of the week in which they occur.
And when the opinion announcements do come out, it is no thanks to the court. It is the Oyez Project, affiliated with Chicago-Kent College of Law, that plucks the audio off the court tapes lodged with the National Archives after the end of each term. Oyez transcribes the announcements and synchronizes the audio and the transcripts before posting them online. This year, the audio became available for listening in October — five months after the last decision of the term was announced on June 26.
Only now, and only on the Oyez website, can the public hear Justice Anthony Kennedy’s powerful statement that day in June announcing United States v. Windsor. Declaring part of the Defense of Marriage Act unconstitutional, he said, “No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”
You also can hear a lighter moment from the same day when Justice Antonin Scalia announced the Hobbs Act case Sekhar v. United States. Scalia said “extortion,” when he meant “coercion.” Correcting himself, Scalia said, “Wow, I almost blew that one.”
There is Justice Ruth Bader Ginsburg’s mournful dissent on June 25 from the majority opinion in Shelby County v. Holder, which struck down a key part of the Voting Rights Act. “It was the judgment of Congress that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination,” Ginsburg said. “That judgment of the body empowered to enforce the Civil War amendment should garner this court’s unstinting approbation.”
Jerry Goldman, founder and director of the Oyez Project, said there is no technological reason why the audio of opinion announcements could not be released with the same turnaround time as oral arguments, which Oyez also posts. Both are drawn from the same recordings that the court uses to release oral-argument audio within a week.
Goldman has urged the court to release opinion-announcement audio quickly in the interest of transparency, calling it a “baby step” that would avoid the concerns justices have raised about broadcasting oral arguments.
Interest in the release of opinion announcements has grown since the fateful announcement of the decision in June 2012 upholding the Affordable Care Act.
Anyone who listened to Chief Justice John Roberts Jr.’s announcement would have learned quickly that the opinion had two parts: one finding the law unconstitutional on one ground, and the second concluding that it was constitutional for other reasons.
But, in part because the announcement was not broadcast or otherwise made available quickly, some media organizations got it wrong, reporting that the law had been struck down.
So why does the court treat opinion announcements differently from all other parts of its public proceedings? The answer appears to be the court’s long-standing ambivalence about opinion announcements.
Some justices privately have pointed out that a summary inherently leaves out parts of the opinion and may over-simplify points. As a result, they fear that if the announcements were widely available and spotlighted, lawyers would interpret or even cite the summary announcements as law, ignoring the official opinions themselves. Ginsburg and Scalia release printed copies of the text of their announcements to the Supreme Court press corps, but only for the accuracy of quotation, not for posting in their entirety.
Longtime NBC Supreme Court correspondent Pete Williams offered another, related theory during an Oct. 25 panel discussion on transparency and the court. Citing unnamed “authoritative members of the court,” Williams said speedier release of opinion announcements “ain’t going to happen.”
“When there’s a decision, the published opinion of the court, they’ve seen that,” Williams said, referring to the justices’ attitude. “They go back and forth. They all know what it’s going to say.” But the justices in a majority “don’t really know how the writer of the majority opinion is going to summarize it.” They don’t see the announcing justice’s summary beforehand. “Sometimes members of the court have told us as they sit there and listen to the announcement being summarized, they say to themselves, ‘Wait a minute, that’s not what I signed onto.’ ” This concern is nothing new. In his 1980 memoir “ The Court Years,” the late Justice William O. Douglas recalled a time when colleague Felix Frankfurter ad-libbed his opinion announcement, giving reasons that bore “no resemblance to the opinion.” As the justices left the bench at the end of the session, according to Douglas, Justice Harlan Fiske Stone said to Frankfurter, “By God, Felix, if you had put all that stuff in the opinion, never in my life would I have agreed to it.”
Tony Mauro can be contacted at firstname.lastname@example.org.