On Point went on the air today to discuss the major Second Amendment gun case, McDonald vs. Chicago, following the oral arguments presented yesterday before the Supreme Court. The full transcript of the hearing is now public, but for radio listeners a key element will remain conspicuously absent: the audio recording of the arguments. There will be no sound from the justices or the lawyers making their cases.
It is standard practice these days for the Court to make full recordings, in an MP3 format, for every oral argument. And since 2000, the Court has from time to time released same-day audio recordings. But the basis on which same-day audio is released continues to be an issue of concern, even outrage, for some legal journalists and scholars. A consortium of media did make a request for same-day audio for McDonald vs. Chicago, but it was turned down without explanation.
Chief Justice John Roberts makes the determination on a case-by-case basis, according to a Court spokesman. The media must make a request each time they want same-day audio. Here's an example of a request from last year. Organizations like Oyez.org have also taken up the cause of making audio widely available to the public.
The Associated Press wrote of the rejected request for McDonald vs. Chicago audio: "With television cameras and reporters' tape recorders barred from the court, the availability of audio provides the public with a chance to hear the justices at work." The Legal Times blog noted last year: "[T]he Court is notoriously stingy with the same-day access, allowing it only when an undefined combination of factors is present."
Slate's Dahlia Lithwick opined on the issue in a much-discussed piece in 2006. She argued that selectively releasing audio spurs speculation that it is being done on a political basis — precisely what the Court should avoid:
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 Senate Judiciary Committee has considered ending the long-standing tradition of allowing the Court to shut out broadcasters, including television. But that bipartisan legislative effort to allow cameras is still in limbo, according to a committee spokesperson.
USA Today legal reporter Joan Biskupic has written about the cameras issue, and she notes that the Justices themselves believe that televising the proceedings is a bad idea.
Putting the Court on TV is one thing, but why not release the audio the same day? On Point registered its own complaint yesterday with the Court's press office. We'll see what happens.