• Transparency advocate believes change is coming to court, just not now
• With each new justice, it becomes more and more likely same-day audio, even video will be provided, he says
The Senate Judiciary Committee wants the Supreme Court to provide same-day audio coverage of oral arguments beginning next term.
Most federal appeals courts offer same-day or live coverage and “transparency should be the rule, not the exception,” a July 2 letter signed by the group’s chairman, Sen. Charles E. Grassley (R-Iowa) and ranking member, Sen. Patrick Leahy (D-Vt.), said.
Currently, the court releases audio coverage at the end of each week of arguments.
Pro-transparency advocate Gabe Roth doesn’t think there will be live audio in the near term. But “with each new justice it becomes more and more likely,” he told Bloomberg Law.
These new justices will be of a generation where audio and even video coverage aren’t as big of a deal as they used to be, Roth said.
Chief Justice John G. Roberts Jr. repeated his position June 29 that video coverage of Supreme Court arguments isn’t a good idea because it could encourage showboating by the advocates and even the justices.
Roberts said the court is the most transparent branch, but it is a cautious institution. The high court introduced electronic filing last fall, years after the rest of the federal judiciary moved to e-filing.
The court should offer same-day audio but at its own pace, professor Nancy S. Marder told Bloomberg Law in an email.
“I would want to know what problems the Supreme Court has to overcome before it could do same-day audio release in every case,” she said.
“We know the Court can do it from time to time, but what are the particular problems to doing it on a regular basis?” she said.
Marder is is a professor at Chicago-Kent College of Law whose scholarship includes Supreme Court transparency.
The Senate letter pointed out that the high court is capable of producing same-day coverage because it did for Trump v. Hawaii, which was argued in April.
There’s great interest in what goes during arguments but only a “select few” get to hear it, the letter said.
It urges Chief Justice John G. Roberts Jr. to “bear in mind those who would benefit most from this simple, yet meaningful, measure of transparency.”
Offering the audio to the American public will allow it to “grow in its appreciation of—and confidence in—the rule of law that safeguards our constitutional system,” the letter said.
The high court should offer same-day audio because it’s good for the institution, Marder said.
But “not because the Senate Judiciary Committee is telling it to do so,” she said.
New Justice Bringing Change?
Court-watchers are gearing up for a confirmation battle for a new justice after Justice Anthony M. Kennedy announced his retirement in June, effective July 31.
Roth said he looks at what the top contenders on President Donald Trump’s shortlist for the court are doing in their courts to get an idea of how they might influence the Supreme Court on transparency issues.
Whoever is nominated will take their own experience with audio and video with them to the court, he said.
Judge Amy C. Barrett of the Seventh Circuit, for example, is on the list and that circuit recently voted to allow for video coverage, Roth said.
Brett M. Kavanaugh of the D.C. Circuit is also on the list. The circuit offers live audio on request and will offer it automatically in the fall, he said.