The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.