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Supreme Court Keeps Files Under Robes

We live in an age where information is instantaneously accessible on virtually any topic. That is, unless your source of choice is the Supreme Court, which routinely makes the media wait months for access to audio files and is a serial denier of requests for video coverage.

C-SPAN and the major news networks were looking to change that situation when they formed an information coalition of the willing last April. The group met with some good early motion but has struck out since then.

According to C-SPAN VP of Programming Terry Murphy, the cable public-affairs network typically writes Chief Justice John Roberts to ask for access to oral arguments. In April, toward the end of the last Supreme Court term, Murphy says C-SPAN decided to ramp up the requests by getting other networks to co-sign the letters. He approached ABC, CBS, NBC, Fox and CNN, which all agreed. That action came after a stretch where C-SPAN had gone 0 for 9 in requests, including calls for access to FCC v. Fox, the indecency case that could help decide how much control the government has over what the public can see and hear.

The coalition met with immediate success when the court agreed to expedite audio of a voting-rights case (see chart). “We thought all of us together might carry more weight,” Murphy says. After a second appeal for audio yielded a “yea” from the court, he adds, “I thought we were on a roll.”

But that early streak has been followed by six turndowns without explanation. The court does not provide any reason for its decisions, according to Murphy.

The court’s policy is to send the audio recordings at the end of each court term to the National Archives, where they are made available to the public. Court spokeswoman Kathy Arberg confirmed this with B&C following the most recent decision not to provide tapes—in this case, regarding arguments on gun laws.

Arberg indicated that the media have a high bar to clear with these requests. “The Court has made a few rare exceptions to this policy when it has released audio on the same day that an argument has been heard, made available through the network pool to distribute for broadcast immediately following the argument,” she said. “These exceptions have been prompted by requests from the media and have been made for arguments in which extremely heightened public interest has been demonstrated.”

Murphy points out that cases the Chief Justice has said don’t meet the public-interest standard—ones the public must wait until July to hear—include those on investment fund fees, the appeal of the conviction of former Enron CEO Jeffrey Skilling, the gun-law case, and two cases about giving life sentences to minors. He adds they are all cases that he would argue meet the test for heightened public interest.

The Radio Television Digital News Association would like the court to stop dragging its feet on this question. Barbara Cochran, the group’s former head, used an acceptance speech at a First Amendment dinner earlier this month to call out the Chief Justice, asking him essentially to “tear down this wall.”

She called the court’s decision not to release the audio of the gun-law case two weeks ago a “stunning setback” to RTDNA’s efforts: “Chief Justice Roberts recently said that he wished the American public understood the workings of the Supreme Court better. Well, Mr. Chief Justice, there is a simple solution. Let the cameras and microphones in.”

The court’s continued reluctance to increase the openness of its process is in contrast to the executive branch, which has made openness, transparency, public input and vetting part of its democratization mantra. In addition, the legislative branch has started to put more of its committee deliberations online, having long ago let C-SPAN show the public at least part of the sausage- making process on a regular basis.