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As another Supreme Court term begins, legal junkies are tuning in online to listen live as the Justices wrestle with the heavy constitutional questions on their mahogany bench. But hit that pause button for a second to acknowledge this as a significant move toward openness by the Court.
The livestream of oral arguments started as a Covid pandemic innovation, as the Justices left their marble courtroom in favor of grilling the two sides in each case via telephone conference call. This term, however, the Court is again welcoming in-person spectators. Until last week, nobody knew if this meant that the live internet feed would go dead. Thankfully, no.
The High Court posts transcripts of its arguments the same day, but before the pandemic it released the audio files only at the end of each week. Even that policy constituted radical transparency, historically speaking. “Prior to the 2010 Term,” the Court’s website says, “the recordings from one Term of Court were not available until the beginning of the next Term.” Exceptions were made in blockbuster cases, but only occasionally.
For two years during Covid, the public was able to hear the Court’s debates in real time. Nonlawyers who listened out of curiosity might have been struck by the abstruse—some might say dull—nature of many cases. Partisans who see the Court as a political body heard the Justices argue about the law, with general seriousness and decorum even on touchy subjects, including abortion.
Not satisfied with live audio, the usual suspects say TV cameras are the obvious next step, as if the Court can’t be a truly open institution until “The Daily Show” can dissect video of its work to create out-of-context punchlines. Baloney. If anything, there’s a discussion to be had about whether Congress should remove TV cameras from some of its hearings, so that lawmakers can do business without the phony how-dare-you shtick that’s become a staple of C-Span.
“I ask people, which public institution has been improved by being televised?” Chief Justice
John Roberts
said in 2018. “Just the number of spectators we have in the courtroom, you worry about counsel kind of playing to the audience—and I have to be honest, worry about the Justices doing that.” If a company were fighting a discrimination case, the Chief said, its lawyer might see the TV cameras and feel compelled to “communicate in some sort of PR way.”
Live audio has been a successful experiment, and that’s plenty of transparency.
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