Supreme Court

SCOTUS Released Same-Day Oral Argument Audio. Guess What Happened Next?

There is no reason not to release same-day audio for all oral arguments at the Supreme Court.

|The Volokh Conspiracy |

Yesterday the Supreme Court released same-day audio of the oral argument in the "travel ban" case, Trump v. Hawaii. What was the consequence? Court-watchers, journalists, academics, and students had the opportunity to hear what a handful of patient or well-connected lawyers saw first hand. News programs were able to supplement reports on the argument with snippets of the argument. Public understanding of the issues before the Court were enhanced, even if only a little.

Were there any negative consequences from releasing same-day audio? Not that I've been able to detect.

The Supreme Court has resisted calls to allow live audio or video of arguments. No video is allowed at all. Audio of oral arguments is currently released the Friday after argument. Transcripts are released the day of argument, but they occasionally contain errors and a written transcript often fails to capture the nature of the dialogue and exchange that occurs during argument. It's no substitute for being able to hear what transpires.

Given that the Court allows audio of arguments, there is no good reason not to release that audio the same day. Even assuming that there are good reasons not to stream audio live—perhaps so as to ensure an ability to address any disruptions that may occur—there is little added value from delaying the audio release for several days. Other federal courts have allowed same-day releaes of argument audio, and this does not seem to have created any problems. What reason is there to believe the Supreme Court is much different?

Perhaps some on the Court fear that releasing same-day audio would encourage advocates (or even justices) to grandstand during oral arguments in the hopes of influencing evening newscasts. After all, the availability of same-day audio would seem to increase the likelihood that a rhetorical flourish is included within news reports on the argument. Yet insofar as this risk exists, it would seem to be greatest in those cases—like Trump v. Hawaii—that touch on sensitive issues (such as immigration, religion, and alleged discrimination), and in which there is the most public interest. Yet it is these sorts of cases—cases such as Trump v. Hawaii and Obergefell v. Hodges—in which the Court has released same-day audio. If same-day audio of Trump v. Hawaii can be released without negative incident, I think we can handle same-day audio of cases about the interstices of the Armed Career Criminal Act or ERISA.

Releasing same-day audio of the travel ban argument worked well. There's no good reason not to expand same-day audio release to all of the Court's cases.

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  1. “Perhaps some on the Court fear that releasing same-day audio would encourage advocates (or even justices) to grandstand during oral arguments in the hopes of influencing evening newscasts.”

    As opposed to including quotable stuff in judicial opinions which will increase the possibility of being read on the news?

    1. Apparently the Justices are concerned that they themselves might be tempted into bad behavior. Strange.

      1. Not at all strange. It’s like Odysseus tying himself to the mast (which is what the Constitution’s various limitations do).

        1. Ah. The siren call of media exposure is irresistible.

          At least Odysseus didn’t give out BS reasons.

  2. “Guess What Happened Next?”

    Does it involve dogs and cats living together?

  3. One can argue that waiting until 9 pm (or 7 am the next day) for the release reduces the knee-jerk reaction on the evening news .

    There certainly were such reactions last night. I don’t see that the are useful for public understanding only only serve to fuel ultra-partisanship.

    1. No matter how long you delay release of the oral arguments, you’re going to get ultra-partisan reactions.

      Same with the decisions themselves.

      1. Yes, but maybe not quite the same nonsense that was scripted before the hearing transcript was released.
        There is no particular identifiable benefit from immediate release that would not obtain from release within 24 hours.

        1. In any case, I’m against the idea that the government should decide on the timing of releasing public information based on whether people will use the information responsibly.

          While public opinion should hold the government to account, the government shouldn’t hold public opinion to account.

          1. Plus in the case of the courts there’s no shortage of lawyers and others who will step in to correct what they see as unfair treatment of judges.

    2. Transcripts are available the same day and in person SCOTUS reporters tweet reactions right after the oral argument. I’m not sure how much more same day audio changes all of this.

  4. Knowledge Is Good

    — Emil Faber, Founder

    1. In context, that’s actually funny Art. First time for everything…

  5. “Perhaps some on the Court fear that releasing same-day audio would encourage advocates (or even justices) to grandstand during oral arguments…Yet insofar as this risk exists, it would seem to be greatest in those cases…that touch on sensitive issues”

    IDK. You’re unlikely to see grandstanding in the first case. It’ll build slowly, as each advocate sees what others got away with, and then takes it a tiny step further.

    Ironically, like the common law.

    1. I think the way that the justices interrupt, at will, and so frequently, will keep any attempt at grandstanding from happening. The good retorts or quips might make their way to the news though.

      1. “The good retorts or quips might make their way to the news though”

        Coming soon, the sound-bite legal system.

        It will be like our televised debates, but with actual consequences. We’re doomed.

    2. My thoughts exactly, norms don’t collapse in a day. As Justices hear their words replayed on news segments, and see their philosophies gain public support as a result, they’ll start choosing their words with the twin objective of playing well for the media.

      A similar thing happened to legislative bodies, after the introduction of radio and then television. Legislative arguments shortened and simplified in an attempt to attract the attention of the new medium.

      1. The change was overnight when cameras got put into place for my local County Board. They went from honest dialogue to posturing and mugging for the cameras like the flip of a switch. It got so bad, that the majority voted to remove the cameras, and now they just audio record the meetings.

        As for Congress, it was Newt Gingrich who started the C-SPAN speeches to an empty floor as a way to give some red meat to the base, but without actually doing/changing anything. The tactic worked, and no everybody does it.

  6. The benefit of delayed release is marginal at best. The Court should remember it is doing the People’s work, and thus its workings should be subject to public scrutiny. Sure, there is always uninformed hyperpartisan reactions, but hard to see how releasing an audio on Friday makes that less likely then releasing it on Tuesday.

  7. Justices are annoyed that a few cases get special attention, arguing it misleads people, and then they selectively release the audio of a few cases on the same day.

    Anyway, I will continue to repeat something I see less noted — opinion announcements are not released at all by SCOTUS, even transcripts. A few times, Scalia or RBG (I think) gave their remarks to reporters beforehand at times, but they didn’t share it with us peons. Why SCOTUSBlog does not transcribe the remarks, including dissents from the bench, is unclear to me. Oyez.com eventually releases them.

    Another thing that could be televised are ceremonial things like Sen. Hatch being involved in swearing in some people to the Supreme Court bar or some such thing.

  8. Or they could just do what the UK Supreme Court does and live-stream the oral hearings.

    1. UK legal practices are no longer worthy of emulating.

      People are sent to prison for social media posts and sick toddlers are judicially murdered.

      1. Says the guy from the country where the police shoot people in the street without repercussion.

        1. At least we don’t fail to investigate mass rape rings because we are afraid of offending a pet religion.

          Your statement is a lie anyway. We prosecute guilty police all the time. We just don’t prosecute because the mob howls for it.

          1. Your worthy points about the joke that is the UK aside, I beg to differ on two points:

            “We prosecute guilty police all the time.”

            Not enough…just wait for another of those Circuit Round-ups and the latest in Qualified Immunity matters. This is my opinion admittedly.

            “We just don’t prosecute because the mob howls for it.”

            The Philly officer exonerated in the Freddie Gray case would beg to differ.

            1. “Qualified Immunity matters”

              those are civil cases. I am referring to criminal cases.

              Not saying either point is 100% honored but we do prosecute many police and most times they deserve it.

              1. Meh, same idea, in that there is a lot of blatant police malfeasance that goes unpunished, even when they should be given the benefit of the doubt.

        2. Now, now, there’s no reason to fight. How bout we stop murdering unarmed black people, and the Europeans stop murdering sick children and incarcerating people for their thoughts?

          1. Second.

      2. The 23-month-old boy has an incurable degenerative neurological condition, and doctors say further treatment is futile and he should be allowed to die. His parents want to take him to a hospital in Italy, where he would be kept on life support

        The same old story of fetishizing the indicia of life only.

        1. “where he would be kept on life support”

          A lie. They already took him off the venilator and he did not die.

          1. US News and World Report called it ‘life support.’ I don’t know what that means, but that’s not the same as ventilator.

            1. The life support is that he is being fed intravenously. He will starve to death. Seeing as no baby is capable of feeding itself, we were all on that type of life support for several years.

              Note: I don’t know anything about the disease, treatments or lack thereof.

        2. “The same old story of fetishizing the indicia of life only.”

          The same old story of socialist governments deciding who gets which resources, including medical care. Do the parents agree that further treatment is futile?

        3. ” His parents want to take him to a hospital in Italy, where he would be kept on life support.”

          It’s certainly understandable that they don’t want him taken to Italy. I mean, can you imagine the repercussions if they took him to Italy and he recovered? We couldn’t have that!

          1. That’s reading a lot into things, isn’t it.

            This is the usual tendentious LifeSiteNews villain narrative.

            1. Why can’t the parents take their child to Italy, Sarcastro?

              1. I don’t know. It’s not a good look.

                But I’m not going to jump into assuming this disease is secretly not terminal and that’s being covered up for…reasons.

        4. Perhaps, but this is the parents’ decision, not the government’s. Freedom means freedom from government. This family is not free.

          It’s one thing to say, “We’re cheapskates and don’t wanna pay for it (“No, death panels don’t exist!)” and quite another to mandate someone die rather than be cared for as the parents see fit.

          This is disgusting and vile from top to bottom.

          1. I don’t know that this is better than the alternative of letting the poor babies die.

      3. Let’s not forget arresting innocent people for carrying multi-tools.

    2. The UK has a different tradition when it comes to the media coverage and politicization of the judicial branch, I suspect the effect would be different in the US.

    3. The UK has its traditions backwards. Don’t live-stream oral hearings and stop wearing the silly wigs.

  9. First world problems.

  10. I can think of very, very few things more worthless than listening to oral arguments.

    1. How about a posthumous pardon? 🙂

      1. Tough call.

  11. It’s really not hard to figure out whether there are really any problems with this practice. Just look at all the other state and federal courts that broadcast OA live or release audio quickly.

  12. They should record video similar to C-SPAN in Congress.

  13. All video and recordings of all things should be banned. Transcripts only for everything, including sporting events. #MakePeopleReadAgain

    1. Great idea. Love it for sporting events. Just think of the transcript.

      Player 1: Oof.
      Player 2: Grunt.
      Player 3 (shouting): Come on, ref!
      Player 4 (shouting): STFU!
      Player 5: Oof. Grunt.

      1. The best transcriptions are probably porn films.

  14. “Europeans…murdering sick children and incarcerating people for their thoughts”
    Yikes I was just there! Does manufacturing such hyperbole pay well? Does it require a lot of work?
    “Don’t think of it as work, the whole point is just to enjoy yourself.” – Otter

  15. I’m ambivalent to the audio, but I would like to keep video recording out of the courtroom for trial and appellate arguments, especially trials. We’ve seen time and again they become circuses: Richard Hauptmann, OJ Simpson, Casey Anthony, etc.

  16. I recently retired after working for more than 3 decades as a judicial staff attorney at the California Supreme Court. When I began, the court’s oral argument was unavailable to the public. Now, oral argument is live-streamed on the internet in real time. I have listened to an awful lot of the court’s oral arguments during that time, and I have seen absolutely no diminution in quality as a result of this change. Granted, the cases before the California Supreme Court aren’t as high profile as those heard by the U.S. Supreme Court. On the other hand, the Justices of the California Supreme Court must stand before the voters in judicial retention elections, which might increase the likelihood that they would play to the crowd. In my view, the high court’s fears are greatly overblown.

  17. Absolutely no reason in 2018 to not allow these to be live streamed.

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