A Good Quarrel: America's Top Legal Reporters Share Stories from Inside the Supreme Court

Introduction: The Role of Oral Arguments in the Supreme Court

Introduction The Role of Oral Arguments in the Supreme Court timothy r. johnson and jerry goldman the federal government puts on many impressive displays in Washington, D.C. Every four years, the nation inaugurates a president , and hundreds of thousands of people attend various celebratory events. Once a year, Congress invites the president to give an appraisal of the state of the union in front of all senators and representatives, the cabinet , some (or sometimes all) Supreme Court justices, and various other dignitaries. Any day Congress is in session, visitors may obtain passes to sit in the Senate or House galleries to watch our legislative process in action . People may also watch extensive coverage of both houses on CSPAN . All of these events are witnessed by thousands, hundreds of thousands , or even millions of people each year. In other words, citizens ‹nd it relatively easy to see their elected representatives in action, sometimes in person, sometimes on television, or on the Internet. In contrast, our third branch of government, the U.S. Supreme Court, appears in the public eye less often than does Congress or the president. In fact, while the Court’s proceedings for oral arguments are open to the public, far fewer people see the justices in action than see members of either of the other branches. Two factors contribute to this outcome. First, the courtroom has limited available seating. Even those who are lucky enough to witness an oral argument usually only glimpse about three minutes of the give-and-take between attorneys and justices . But in most cases, anyone willing to stand in line will be well rewarded . Of course, in highly salient cases, the lines can be extraordinarily long. In fact, the Court anticipates such occurrences. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the Court’s public information of‹cer, Toni House, sent a memo to the justices detailing seating arrangements for the gallery. Among other things, only one hundred seats were reserved for the public, and the line for those seats of‹cially formed at midnight the night before the arguments. Second, the Court simply hears very few cases. While as late as 1992, the justices sat for more than one hundred cases per term, today that number averages fewer than eighty. The courtroom, therefore, is inaccessible for most citizens who make the trek to Washington to experience government in action. In addition, as several of the essays in this volume note, the Court does not videotape its oral arguments or opinion announcements. Thus, even if people wanted to see the Court in action , they could not do so on C-SPAN or on other visual media outlets. While for each case, an audiotape and written transcription are prepared, neither has historically been much more accessible than the live arguments. Yet the Court has tried to alleviate this problem. Indeed , since the 2006 term, it releases the written transcripts of arguments on the same day they are heard. The release of audio takes longer—these materials are released to the National Archives in the October following the term during which the cases were argued. Authorized vendors then makes copies for use by researchers, a process that often requires an additional few months. Since the Court is now recording its sessions digitally, that lag time should drop from a few months to a few weeks. The Court has taken one other step toward opening itself to the world. Beginning in December 2000, it has made certain cases more accessible to the public. That is, at the behest of the chief justice, the audio of the oral arguments may be released on the day of the proceedings| a good quarrel 2 if heightened public interest warrants such an expedited release. These are not simultaneous (i.e., live) feeds from the courtroom but rather delayed releases within a few hours of the argument. Despite this policy, Chief Justice William H. Rehnquist and Chief Justice John G. Roberts Jr. have taken this action in only a handful of cases, including Bush v. Gore (2000), Boumediene v. Bush (2008), Al Odah v. United States (2008), Ralph Baze and Thomas C. Bowling, Petitioners v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al. (2008), Hamdi v. Rumsfeld (2004), and Rumsfeld v. Padilla (2004). Despite the fact that far fewer people see the Court in action than watch Congress or the president and despite...