Supreme Court Watch: Announcing Same-Day Audio Release Of DOMA And Proposition 8 Arguments

The Supreme Court will release the audio recordings and transcripts of the oral argument for the Defense of Marriage Act and California’s Proposition 8 cases within hours of the argument on Tuesday and Wednesday this week; does expedited audio coverage suggests a possible trend toward televised coverage one day?; ironically, in one of the cases subject to this expedited procedure this week, the Supreme Court stayed the broadcasting of the federal trial without addressing the merits of televised federal proceedings

A recurring issue concerns coverage of Supreme Court proceedings. While audio recordings of the oral arguments are now provided usually by the end of the week, some have advocated televised proceedings. See generally Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings. As we recently noted, a number of Supreme Court Justices continue to oppose televising or video recording the proceedings. See Supreme Court Watch: Justices Note Continued Reservations Over Cameras In the Supreme Court.

As it turns out, one of the cases which the Court will consider this week initially presented questions about whether the bench trial could be broadcast. Ultimately, the Supreme Court stayed any broadcast after concluding that "the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting." Hollingsworth v. Perry, 558 U.S. _, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010); Supreme Court Watch: No Broadcast Of Proposition 8 Bench Trial After Supreme Court Stay; see also Ninth Circuit Reverses Order to Release Video Of Proposition 8 Bench Trial.

Same-Day Audio Recordings Announced

This week, the Supreme Court will hear oral arguments in two cases presenting challenges to current law barring recognition of same-sex marriage:

  • Tuesday, March 26, 2013: In Hollingsworth v. Perry (Proposition 8) (No. 12-144), the Question Presented is: "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the· union of a man and a woman."
  • Wednesday, March 27, 2013: In United States v. Windsor (Defense of Marriage Act) (No. 12-307), the Question Presented is "Whether Section 3 of DOMA [defining "marriage" under federal law as "only a legal union between one man and one woman as husband and wife"] violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State."

According to an announcement last week:

The Court will post the audio recordings and unofficial transcripts as soon as the digital files are available for uploading to the Website. The audio recordings and transcripts should be available no later than 1 p.m. on March 26 and no later than 2 p.m. on March 27.

The Supreme Court has also made the briefs, orders and other materials for both cases available on the Court’s Website. Normally, the briefs and related materials are not available from the Court’s site.

Supreme Court History Involving The Release Of Audio Recordings And Transcripts

In 1955, the Supreme Court first began audio recording oral arguments. The National Archives and Records Administration maintained the recordings. Overtime, case information would become increasingly available through the Court's Website, which started in April 2000. In April 2004, the Court noted that questions presented in "granted and noted cases" were available on the Website.

In September 2004, the Court announced that the Justices asking questions during oral argument would be identified in the official transcripts for the first time. Oral argument transcripts are available on the Court Website about “10-15 days after the transcripts are complete” or “in the Court's Library approximately 7-10 days after oral argument.” As the Court explained the change:

Beginning with the October Term 2004, the official transcripts of oral arguments will identify the Justices who ask questions during courtroom sessions. The change in practice is being made in the interest of the accuracy and completeness of the transcripts for reporting, research and archival purposes.

Since 1968, when transcripts were first provided on a regular basis for the Court by private reporting companies, transcripts have identified a question from the Bench not by the justice but by using the word 'Question.'

Prior to 1968, official transcripts were not prepared for the Court on a regular basis. Counsel who wished to have transcripts could make arrangements directly with private shorthand reporters, who often included the Justices' names. These occasional transcripts date back to 1935 and are available in the Court's Library.

In September 2006, the Court announced that oral argument transcripts would be made available to the public through the Court Web site. Previously, the “transcripts had been posted on the Web site approximately two weeks after the close of an argument session.” In September 2010, the Court announced that audio recordings of oral arguments would be made available to the public on the Supreme Court Website at the end of the argument week. See also Transcripts and Recordings of Oral Arguments Notice (October 2010).

In noteworthy cases, or cases generating a substantial amount of public and media interest, the Supreme Court has made special arrangements for the expedited release of audio recordings:

  • April 2, 2003 Announcement: Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241); Gratz v. Bollinger , 539 U.S. 244 (2003) (No. 02-516), audiotapes for the oral arguments heard on April 1, 2003 “are made available to the public through the National Archives”
  • April 13, 2004 Announcement: Rasul v. Bush, 542 U.S. 466 (2004) (No. 03-334); Al Odah v. United States (No. 03-343); Cheney v. U.S.D.C. District of Columbia, 541 U.S. 913 (2004) (No. 03-475); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696); Rumsfeld v. Padilla, 542 U.S. 507 (2004) (No. 03-6696), “audiotapes will be released shortly after the conclusion of each of the arguments” set for April 20, 27, 28, 2004 to members of the media with later public access through the National Archives
  • November 25, 2005 Announcement: Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (No. 04-1144), "audiotapes will be released shortly after the conclusion of" oral argument on November 30, 2005 to members of the media with later public access through the National Archives

  • November 25, 2005: Announcement: Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) (No. 04-1152), "audiotapes will be released shortly after the conclusion of" oral argument on December 6, 2005 to members of the media with later public access through the National Archives
  • March 21, 2006 Announcement: Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-184), “audio recording will be released shortly after the conclusion of the argument” on March 28, 2008 to members of the media with later public access through the National Archives
  • November 2, 2006 Announcement: Gonzales v. Carhart, 550 U.S. 124 (2007) (No. 05-380); Gonzales v. Planned Parenthood, 550 U.S. 124 (2007) (No. 05-1382), “audio recording will be released shortly after the conclusion of each of the arguments” on November 8, 2006 to members of the media with later public access through the National Archives
  • November 27, 2006 Announcement: Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007) (No. 05-908); Meredith v. Jefferson County, 551 U.S. 701 (2007) (No. 05-915), “audio recording will be released shortly after the conclusion of each of the arguments” on December 4, 2006 to members of the media with later public access through the National Archives
  • November 27, 2007 Announcement: Boumediene v. Bush, 128 S.Ct. 2229 (2008) (No. 06–1195); Al Odah v. United States, 128 S.Ct. 2229 (2008) (No. 06–1196), "audio recording will be released shortly after the conclusion of the arguments" on December 5, 2007 to members of the media with later public access through the National Archives
  • December 20, 2007 Announcement: Baze v. Rees, 553 U.S. 35 (2008) (No. 07-5439), "audio recording will be released shortly after the conclusion of the argument" on January 7, 2008 to members of the media with later public access through the National Archives
  • March 4, 2008 Announcement: District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290), “audio recording will be released shortly after the conclusion of the argument” March 18, 2008 to members of the media with later public access through the National Archives
  • April 20, 2009 Announcement: Northwest Austin Mun. Util. v. Holder, 557 U.S. 193 (2009) (No. 08-322), “audio recording will be released shortly after the conclusion of the argument” on April 29, 2009 to members of the media with later public access through the National Archives
  • September 4, 2009 Announcement: Citizens United v. Federal Election Commission, 558 U.S. 50 (2010) (No. 08-205), “audio recording will be released shortly after the conclusion of the argument” on September 9, 2009 to members of the media with later public access through the National Archives
  • March 16, 2012 Announcement: National Federation Of Independent Business v. Sebelius, 567 U.S. _, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (Nos. 11-393, 11-398, 11-400) (collectively “the Patient Protection and Affordable Care Act cases”), “Because of the extraordinary public interest in those cases, the Court will provide the audio recordings and transcripts of the oral arguments on an expedited basis through the Court's Website” for the oral arguments on March 26, 27, and 28, 2012; “The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m.”; briefs and audio links were also made available on the Court’s Website; see also i>Supreme Court Watch: Announcing Same-Day Audio Release Of Health Care Arguments
  • March 19, 2013 Announcement: Hollingsworth v. Perry (Proposition 8) (No. 12-144); United States v. Windsor (Defense of Marriage Act) (No. 12-307), “audio recordings and transcripts of the oral arguments” will be provided “on an expedited basis through the Court's Website” and “should be available no later than 1 p.m. on March 26 [for the Hollingsworth v. Perry case] and no later than 2 p.m. on March 27 [for the United States v. Windsor case]”

Emerging Trends?

The Court has signaled a trend toward increasing availability and access to audio recordings and transcripts of oral arguments. Initially, audio recordings were made available to the media in noteworthy cases and to the public at the National Archives. The Supreme Court has used its Website to make the audio and transcripts available. The transcripts are normally available the same day as the argument while the audio is generally added to the Website by the end of the week. For noteworthy cases, the Court has made special arrangements for same day release of audio. This online access is certainly welcome for Court observers and provides enhanced insight and understanding of arguments and questions raised during oral argument.

It remains to be seen whether the increasing audio coverage suggests a possible trend toward televised coverage one day? If audio can be publicly available, why not video? At some point, are any distinctions between audio and video release material anymore? Only time will tell.

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For more on the subject of Cameras in the federal courts, see the Cameras And Electronic Devices In The Federal Courtroom Resource Page. This Resource provides access to a library of documents including judicial conference policies, judicial guidelines, legislation and hearings, cases and other articles of interest.

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