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An audio example for the Supreme Court

September 12, 2013|By Michael McGough
  • Supreme Court Justice Antonin Scalia's question about broccoli and Obamacare was broadcast on the same day he asked it.
Supreme Court Justice Antonin Scalia's question about broccoli… (Charles Rex Arbogast / Associated…)

Despite lobbying by the news media and members of Congress, the Supreme Court seems no closer than it was a year ago -- or a decade ago -- to allowing television cameras to record its arguments. But with a minor change in its routine, it could make those arguments more accessible to court junkies and ordinary Americans alike. The way has been paved by the U.S. Court of Appeals for the District of Columbia Circuit, which is sometimes described as the second most important court in America and which has served as a steppingstone for four members of the current Supreme Court, including Chief Justice John G. Roberts Jr.

Beginning this week, by a unanimous vote of the court’s judges, the D.C. Circuit is posting audio recordings of oral arguments on its website within hours of the proceedings. The Supreme Court also posts audio of oral arguments on its website, but on a delayed basis. Arguments take place on Monday, Tuesday and Wednesday, but the audio isn’t available until Friday. (Transcripts of arguments are posted on the same day.)

It’s easy to see why the justices might like the delayed release. Some of them are known to fear that televising oral arguments would allow broadcasters to air out-of-context soundbites on the evening news. That’s also a possibility with audio recordings, but less likely if the audio is delayed. What TV or radio news director will want to feature a snippet from Monday's arguments on a Friday newscast?

But here’s what is peculiar: The court has provided same-day audio in a few high-profile cases, including last year’s arguments over the constitutionality of Obamacare. Thus, broadcasters were able to season their same-day newscasts with timely soundbites from the bench, including Justice Antonin Scalia’s now-famous suggestion that if the government could require citizens to purchase health insurance, it could also make them buy broccoli.

The court’s  willingness to allow same-day audio in high-profile cases, while delaying it in obscure ones, is reminiscent of Jesus’ gibe about scribes and Pharisees who “strain out a gnat and swallow a camel.” Or to put in non-biblical terms, the court should adopt the philosophy of “in for a dollar, in for a dime” and provide same-day posting of the audio of every argument.

My guess is that the availability of audio on the day of argument might lead to a modest increase in broadcast coverage of borderline cases. That would be a good thing for the court and the country. The Supreme Court should affirm the good judgment of the D.C. Circuit.


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