Do you have a strong opinion on which side had the better argument in Yellow Transportation Inc. vs. Michigan, the first case that the U.S. Supreme Court heard argued this term? And what about the final case argued this spring, Beneficial National Bank vs. Anderson?
Chances are that—even if you are like me and try to stay on top of the news and generally have lots of strong opinions—you don't know much about either case.
That's because it's unlikely that you were among the journalists, guests of the justices or members of the public who snagged one of the coveted 250 seats available for each of the 79 one-hour oral arguments heard between Oct. 7 and April 30.
In all but two affirmative-action cases argued back-to-back on April 1, if you didn't hear the argument in person, you couldn't hear it at all. And that's wrong.
Today, it's long past time for the nation's highest court to shed its elitist, undemocratic policy of not allowing immediate broadcasts of its oral arguments.
The court does have a legitimate goal of shielding itself from political influences as it lays down the rules which all Americans, businesses and the government must play by.
Yet that ought not keep the life-tenured justices from letting our entire citizenry listen in on the high-stakes debates that are already open to anyone lucky enough to squeeze into their small courtroom.
(The court should, of course, conduct its deliberations in justices-only conferences, where each of the nine announces how he or she intends to vote on a given case. And justices should continue to decline virtually all interview requests.)
Ironically, the court itself has turned out to be the best advocate for doing away with its antique policy of not immediately releasing audiotapes for broadcast:
This term, the court—for only the second time in history—did release an audiotape immediately following oral arguments. As in the Bush vs. Gore election dispute, the secretive court decided the public had a compelling reason to hear actual arguments—this time about the future of affirmative action. And guess what? Pandemonium didn't break out as a result: Attorneys didn't grandstand any more than usual; neither did the justices.
Instead, tasteful, still photographs of justices and lawyers appeared on the TV screen as they spoke.
The court's successful experiments demonstrate that the justices shouldn't snobbishly decide which arguments are 'important' enough for the entire public to hear. Everyone, for example, ought to have been able to hear the March 26 back-and-forth over the Texas law that absurdly criminalizes certain sex acts—but only for same-sex couples.
'We don't want the justices to be just another committee that yields to public pressure based on how many e-mails are sent. Their job is to uphold the Constitution, not to just take a poll,' notes attorney Evan Wolfson, who in 2000 unsuccessfully argued for the court to force the Boy Scouts to allow gay scoutmasters. 'But broadcasting the oral arguments would give people insights into the debate without interfering with the protections and insulation the court needs.'
Now, absent winning the court's version of musical chairs, citizens must rely on news accounts (by journalists who, by the way, aren't even allowed to use tape recorders to ensure accuracy of quotes and often can't see which justice is speaking).
Or, citizens can pay $300 for a same-day transcript that doesn't even identify which individual justice is speaking. Or, they can wait about a year to hear an argument replayed on the Web through a wonderful public service. Northwestern University political science professor Jerry Goldman posts arguments on oyez.nwu.edu once he receives them from the National Archives.
But nothing can—or should—take the place in our democracy of the people having the right to hear their government in action.
The verdict is clear in this case: May it please the court to do the right thing for the American people.
COPYRIGHT 2003 CREATORS SYNDICATE
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