Supreme Court still reluctant to allow livestreaming of opinion announcements
Opinion announcements and oral dissents make for high drama at the court. The court has been livestreaming its arguments since May 2020, when the COVID-19 pandemic at first led to telephone arguments, and then continuously since the justices returned to the courtroom in the fall of 2021. But it has never offered live or timely access to the audio of opinion announcements. (Image from Shutterstock)
As its term winds down, the U.S. Supreme Court has potential blockbuster opinions yet to come on social media regulation, gun rights, federal environmental rules, local laws affecting homelessness, and immunity for former President Donald Trump.
Just last week, the court issued headline-making decisions that emergency room doctors opposed to abortion lacked standing to challenge the federal approval of mifepristone, and that the executive branch exceeded its authority by classifying bump stocks as an illegal machine gun. That decision, Garland v. Cargill, led to the term’s first reading from a dissent on the bench, by Justice Sonia Sotomayor.
Opinion announcements and oral dissents make for high drama at the court. The court has been livestreaming its arguments since May 2020, when the COVID-19 pandemic at first led to telephone arguments, and then continuously since the justices returned to the courtroom in the fall of 2021. But it has never offered live or timely access to the audio of opinion announcements.
“The result is that, when Justice Sotomayor read her dissent in Cargill from the bench on Friday, the only people who could hear it were those physically at the Supreme Court,” University of Texas law professor Steve Vladeck observed on his “One First” Substack site this week.
Vladeck, a prolific commentator about the court, calls the court’s refusal to livestream opinion announcements “unfortunate.”
“We obviously don’t have a right to have the court livestream opinion announcements,” he wrote. “But this seems like a relatively low-cost move that would not only dramatically increase the public transparency of one of the court’s most significant acts, but also make it easier for the justices—both in the majority and in the dissent—to speak directly to the American people.”
Recordings used for TV special and cassette tapes
The court has been recording its arguments and opinion announcements since 1955, with those recordings available to the public on the private Oyez.org website. But there are many gaps because of technological problems.
The justices didn’t always embrace public access to those recordings, which the court turns over to the National Archives at the end of each term. After CBS News correspondent Fred Graham aired parts of the 1971 argument from the Pentagon Papers case in a 10th anniversary report, Chief Justice Warren E. Burger ended the practice of turning over the tapes to the archives.
When Burger retired in 1986, the court resumed providing the tapes, though with conditions, and only a handful of researchers regularly made use of them. In 1993, law professor and author Peter Irons skirted his contractual agreement barring reproduction of the recordings. He copied oral arguments and opinion announcements from several landmark cases, leading to a book and cassette tape package that sold briskly. The court expressed its dismay and threatened “legal remedies,” but it eventually backed down.
Meanwhile, law professor Jerry Goldman, then of Chicago-Kent College of Law and later Northwestern University, launched Oyez.org as an online repository of the available recordings. The site, now at Cornell University’s Legal Information Institute, is a popular research tool for court devotees.
The court has moved over the years toward easier access to oral argument audio. After occasionally releasing same-day recordings of major arguments, the court eventually adopted a policy of posting argument audio at the end of each week. And with the pandemic, that changed to full livestreaming and an instant archive.
But opinion announcements have been a different story. The court still waits until the end of the term to turn those over to the National Archives, and it can take Oyez months to process the recordings before posting them. The opinion announcements from the 2022-23 term largely did not show up on the Oyez site until early this year.
Goldman says that years ago he had written to former Chief Justice William Rehnquist to request that he speed up the release of opinion announcement recordings, to no avail. Later, he had the chance to make the same pitch to Chief Justice John Roberts, urging him to make the release right after all opinions were released, usually by the end of June, rather than waiting until the fall.
“I had the opportunity to put that to Roberts directly,” says Goldman, referring to a time about a decade ago when a former student of his was clerking for the chief justice and had arranged a tour of the court and a meeting with Roberts.
Roberts said, “It had long been the policy of the court to do it this way, and the opinion announcements are not subject to the approval of the other justices,” Goldman says.
Indeed, each justice crafts their own opinion announcements, and each has their own style. Some like rhetorical flourishes, while others give a bare-bones explanation and quickly refer to “reasons expressed in the written opinion.”
On May 16, Sotomayor left spectators in the courtroom slightly astonished and puzzled with a cryptically short announcement in a low-profile arbitration case, Smith v. Spizzirri. The case involved whether a provision of the Federal Arbitration Act permitted a court to dismiss a case instead of issuing a stay when the dispute was subject to arbitration and a party requested a stay pending arbitration. In her written opinion, Sotomayor said that when the statutory provision “says that a court ‘shall … stay’ the proceeding, the court must do so.”
From the bench, rather than give the typical background of the case, Sotomayor said only this: “Stay means stay. The opinion of the court is unanimous.”
Goldman says he has never asked the court for livestreaming or same-day release of opinion announcements. But others have clamored for that, including Vladeck.
“If the concern is that the media will use the justices’ voices out of context, that hasn’t manifested at all in the argument context,” he wrote this week. “And if the concern is that the justices might say something that goes beyond what’s written in the four corners of their opinion, well, so what?”
Vladeck says oral dissents are especially important, noting that justices sometimes add flourishes that aren’t in the written opinion. He cited the example of Justice Stephen Breyer’s 2007 dissent in Parents Involved in Community Schools v. Seattle School District. In that case, the majority sharply limited how schools could consider race in assigning students to schools.
Breyer, alluding to changes wrought by the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito, said a line that did not appear in his written dissent: “It is not often in the law that so few have quickly changed so much.”
“As much as Breyer intended that line for his colleagues and the bar, his audience … was really the public—almost none of whom got to hear him say it,” Vladeck said.
An ‘amazing’ advance in courtroom audio
Goldman recently was instrumental in making an addition to the historical record of Supreme Court recordings, in a sense. With the court starting its recordings in 1955, that meant it just missed capturing oral arguments and the opinion announcement in what many consider its finest moment: Brown v. Board of Education, the 1954 decision that outlawed racial segregation in public schools.
Goldman launched the Brown Revisited project, which used actors and artificial intelligence to recreate key portions of the lengthy arguments in Brown, as well as the May 17, 1954, opinion announcement by Chief Justice Earl Warren.
Goldman says he was inspired by an outing to a Broadway play a few years ago, “What the Constitution Means to Me,” in which the voice of President Joe Biden was employed in a message encouraging theatergoers to silence their cellphones. Except it wasn’t actually Biden, but an A.I.-produced simulation.
Goldman and his colleagues used whatever audio evidence was available to try to replicate the voices of lawyers, such as Thurgood Marshall, who argued for the plaintiffs, and John W. Davis, the lead lawyer defending separate but equal schools, as well as Warren.
Breyer told The Wall Street Journal that the project was “amazing” but also “a little creepy.”
“But it seems to me a good idea and well worth the effort,” Breyer said.
Goldman says he has a list of other major Supreme Court arguments and opinion announcements he would like to animate through the project, including some from the New Deal era and even a few since 1955 for which usable audio is missing.
“The one that stands that I will recreate at some point is [Justice] Harry Blackmun’s opinion announcement in Roe v. Wade,” he says, referring to the landmark 1973 abortion decision that was overruled two years ago.
“These recordings will interest more people in visiting these materials than just giving them the transcripts,” Goldman says. “It will stir the pot and get students and the public reengaged with these important things.”
