Here's one for the "Gift Horse in the Mouth" department.
Yesterday the Supreme Court announced that it will release the audio of oral argument in next Monday's two big affirmative action cases. For only the second time this term, the court has granted a request to broadcast particular arguments—with a slight time delay—so the public can tune in live on C-SPAN. The first time this term was with last month's "partial-birth abortion" cases.
As someone who has long pushed for the audio broadcast (if not live video coverage) of every oral argument at the court, I'm about to sound way ungrateful. But the court's policy of allowing the public to listen in on some oral arguments and not others is a huge mistake for about a million reasons. It's the modern-day equivalent of the feudal lord opening up the castle to his serfs for one drunken night at Christmas: It's condescending, it's irrational, and it reinforces the worst stereotypes about a secretive, elitist high court.
The court's formal approach to audio broadcasting is a bit hard to pin down. The gist seems to be that certain media outlets make requests of the chief justice (here's a recent example), and the chief justice then decides whether to grant them. The standard cited in both the request letters and the orders granting permission is whether there is a "heightened public interest" in the matter being argued. That language goes back to the court's rationale in granting permission to allow the first audio release of oral argument in Bush v. Gore.
Since that time, numerous media organizations have made numerous requests to then-Chief Justice Rehnquist and now-Chief Justice Roberts for time-delayed audio-casts of various cases. I know, because my name was on at least one of them. Some of these requests are granted. Some are denied. C-SPAN will be documenting its own efforts for broader audio-casting here. Last term, for instance, the court agreed to release audio broadcasts of Hamdan v. Rumsfeld, the military tribunals case, the parental consent for teen abortion case, and the case involving military recruitment on campuses. It declined to allow audio for the cases testing the limits of the Clean Water Act or Texas' voter redistricting. But why?
Assume, for a moment, that the court's implementation of its policy, whatever that may be really, isn't arbitrary. Assume, even, that there is some objective instrument with which the chief justice can measure the magnitude of public interest in a given case. The policy of only allowing audio broadcast of the so-called important cases would still be a terrible one. First of all, there is no such thing as an unimportant case at the high court. And since when is a case's importance measured by public interest? A lot of people think tomorrow's global warming case is pretty important. Many more penguins would agree.
The implication that the court can gauge "public interest" in a case by the number or intensity of media requests makes no sense. The parental abortion notification case was important to some Americans, certainly. But the eminent domain case, Kelo, from the prior term is still causing political aftershocks, yet seems not to have warranted a broadcast request at all. Many more Americans will be directly and personally impacted by the court's criminal sentencing cases than by this term's partial-birth abortion cases. These guys may not watch C-SPAN. But their interest is "high" just the same. It is doubly crazy that a body charged with looking out for the disenfranchised and the unpopular is making decisions about public access to its proceedings based on popularity and public opinion.
But the court's hot/cold audio policy isn't just unfair. It's also self-destructive. If you look at the list of the cases for which the court has granted same-day audio access, it's a festival of hot-button, crazy-making social issues, guaranteed to rip the country in two. Unless I am miscounting here, the court has allowed audio casting on the two upcoming affirmative action cases; the two most recent abortion cases; the monster enemy-combatant case from last year; the "don't ask, don't tell" case about the army's policy on gay soldiers; and another abortion case from early last term. The year before that, the court released audio of three more big enemy-combatant cases, including the first Guantanamo case, and the case about Dick Cheney's supersecret energy commission. For good measure, the court also allowed us to listen in on the first round of affirmative action cases and campaign-finance reform cases, and, of course, Bush v. Gore.
Those aren't necessarily the court's most important cases, by any historical or constitutional measure. But they sure are the ones that cause conniptions over at the Wall Street Journal and New York Times editorial pages. And if I go back and count votes in the above-mentioned cases, a lot of them were decided by tense, close margins, along the very ideological lines that track the New York Times/Wall Street Journal editorial divide.
If the Supreme Court justices really want the public to recognize that what they do is subtle and legal, as opposed to ideologically driven, why would they release the audio in precisely those cases in which they are most stridently split? Why reinforce the stereotype of a partisan 5-4 court that splits along the most-basic liberal/conservative lines? Maybe the court should do itself a favor and broadcast only the easiest cases (where the justices all agree) or only the most technical ones (where nobody gets to say the word fetus). If the justices learned anything at their respective Thanksgiving tables last weekend, you'd think it was that if you must bicker about affirmative action and abortion, it's better not to do it in front of the children.
Orin Kerr makes this point better than I have: Tapes of all oral argument are released within a year and archived for public consumption. It's simpler and fairer to just make them all available the day they are argued. There is no good reason not to release them, and if the justices really want to stay in the judging business, they should probably get out of the public opinion business altogether.