< Hear Ye, Hear Ye

Transcript

Friday, December 08, 2006

BOB GARFIELD:
On Monday, the Supreme Court issued taped proceedings in a school integration case. Hearing same-day audio from the high court is a recent development. It was only six years ago, when the court was hearing arguments about the contested election in Gore v. Bush, that we were able to listen in on the proceedings almost in real time. And that's because then-Chief Justice William Rehnquist decided, in the midst of the controversy, that more transparency was called for, and so it continues to this day – up to a point.

The court allows the public to listen in only to cases it deems important. But Dahlia Lithwick, legal correspondent for Slate, wants the chance to hear all of the proceedings on the same day. And she's not alone in this. In fact, Republican Senator Arlen Specter wants the opportunity to see them, too.

DAHLIA LITHWICK:
Arlen Specter every year tries to pass legislation that would allow cameras into the courtroom. He's the chairman of the Senate Judiciary Committee, and he's also one of the people who's sort of got the most kind of eagle eye on constitutional matters. And he thinks it's simply, you know, unthinkable that the court isn't covered the way the other branches of government are covered.

And every year, there's a sort of slap-fight back and forth between the Supreme Court and senators like Specter. Some of the Supreme Court justices who are now sitting have testified before Congress, and famously, Justice David Souter said, if you roll those cameras in, you'll roll them in over my cold, dead body.

So they feel very, very strongly, the justices, that this is simply not going to happen.

BOB GARFIELD:
Now, one of the peculiarities of the change in court policy is the selection of cases that it has chosen to let the public listen in on. In your Slate piece, you describe them as a series of hot-button cases that may or may not have a whole lot of legal significance but certainly are ones that are polarizing in the public.

DAHLIA LITHWICK:
Just a quick look suggests that they keep doing it in the abortion cases, in the affirmative action cases, in the don't-ask-don't-tell gays in the military case and in the enemy combatant cases. What that means to me is that they're picking unfailingly these very, very tense, tend to be five-four, as you said, polarizing cases.

It's so interesting to me that Chief Justice John Roberts and Sandra Day O'Connor and Stephen Breyer are all out there saying over and over again, if you only understood what judges do, you wouldn't accuse us of being activist. What we do is actually very nuanced, very technical, very difficult.

And then they go out and they audio the most tense cases. They're doing it exactly wrong -- release audio for some really dull commerce clause cases or some incredibly boring marine law cases. Choose the cases that are more representative of what it is that the court does every day.

BOB GARFIELD:
Until 2000, everything I know about oral arguments at the Supreme Court were based on Nina Totenberg reading her own transcripts of them. It always amazed me that decisions were based on the basis of them. They seemed so superficial and sometimes going down blind alleys.

If you listen to the oral arguments, on tape or any other way, what do you learn about the Supreme Court and its deliberations?

DAHLIA LITHWICK:
I've heard several justices say a great oral argument will not often turn justices around. But if you get up there and really sort of bollix things up, you can lose some of the justices. And that's, I think, the conventional wisdom.

But with that said, I think that what happens at oral argument and what people are really missing out on, and it's one of the things that Nina Totenberg does so well, you're missing out on the sort of human drama, you know, the complexity of what it is to be this big dysfunctional family of nine who sit together every day.

For instance, Justice Clarence Thomas doesn't speak. He asks maybe six or seven questions all year long, whereas, you know, Justice Scalia asks six or seven questions in 10 minutes.

And I do think that the more people saw oral argument or at least heard what happened there, the more they'd feel the sort of affection for the court that court watchers feel.

BOB GARFIELD:
I've got to ask you, you know, we're pretty much reflexively for more transparency, not less. But in the case of cameras in the courtroom, as we have seen by watching lots of Court TV, there seems to be a palpable effect on the proceedings by the very presence of the camera. Isn't there a very real chance that it compromises the process?

DAHLIA LITHWICK:
That's certainly a very legitimate argument. It's one that several of the justices have made. They have good arguments and bad arguments for keeping cameras out. The bad arguments are we don't want to be recognized at the Safeway. That's not a good argument. The good arguments are once there's a camera trained on these attorneys, they're going to start barking like seals and acting goofy.

But from courts around the country, the feedback has been, you know, it really isn't that damaging. Everybody gets used to it and they go on with their business.

BOB GARFIELD:
Over David Souter's dead body and all that, does anyone but the court have the authority to mandate permitting cameras in the Supreme Court chambers?

DAHLIA LITHWICK:
It could develop into quite a legal question about whether anyone can force the court to do that against their will. I don't know that it's going to come to that. My strong sense is that the justices who feel extremely strongly that they don't want cameras in there, notably David Souter, notably Antonin Scolia, are eventually simply not going to be on the court.

And I think that John Roberts, and you see it already – he did a major television broadcast two weeks ago – he's much more media-savvy. He's much less fearful of the television cameras. Maybe I'm wrong, but I don't know that there's really support for major legislation that would force cameras into the courtroom over the wishes of all the justices.

BOB GARFIELD:
Dahlia, thank you very much.

DAHLIA LITHWICK:
It's my pleasure.

BOB GARFIELD:
Dahlia Lithwick is a legal reporter and senior editor at Slate.com.

Before the era of same-day audio of the Supreme Court, if you wanted details of the day's proceedings, there was the written word – and there was Nina Totenberg. Working from her carefully written notes, NPR's legal correspondent set a new standard for legal radio drama. Here, she reenacts a case about wearing buttons with messages in a murder trial.

NINA TOTENBERG:
Justice Souter: What if the button had said, hang Musladin? Answer: That would be so egregious that it would affect the fairness of the trial. Justice Souter: Why? Answer: Because the message is urging the jury to convict him. Justice Souter: What's wrong with that? The prosecutor's going to get up and urge the jury to convict him anyway. Chief Justice Roberts: How different is it from the victim's family sitting behind the prosecution every day of the trial?

BOB GARFIELD:
While she conjures up the moods of the Supremes, she stops short of actually mimicking them.

NINA TOTENBERG:
It would smack of real disrespect. I mean, if I were going to imitate Justice O'Connor, for example, totally, I would have to get sort of a Southwestern twang into my voice and my nose. And if I was going to imitate Justice Ginsburg, I would be assuming a kind of a quiet, some might call it mouse-like voice.

You don't want to mimic their accents, but what you do want to do is get the texture of their question as reflected in their voice, which is why I sometimes refer to Justice Scolia, for example, as – I'll say, Justice Scolia "puckishly," because that reflects just the way he looks. He sort of leans forward, and he's got this little look on his face, like I'm going to really get you here.

Or I will refer to Justice Kennedy as "red-faced," because when he gets ticked, he gets red.

BOB GARFIELD:
I must say that when I first heard Sandra Day O'Connor's voice, it was something like that scene in Singing in the Rain when the audience first hears Lena Lamont's voice her squeaking voice that did not quite comport with her screen image. It was a little of a shocker for me.

NINA TOTENBERG:
Well, she's Dale Evans, the Supreme Court justice, is the truth. This is a justice who was brought up on a ranch, and that's what she sounds like.

BOB GARFIELD:
So tell me, now comes the opportunity to actually have recorded voices of the oral arguments from the justices, and, you know, maybe the possibility of having it as a routine procedure. How do you feel about that?

NINA TOTENBERG:
Well, in candor, I don't know a broadcast journalist who thinks that would be a wonderful idea on a daily basis, because it is so much more work. It is very difficult to actually and accurately represent the way the argument went by using the tape, because the tape is so much legal jargon and there's so much case names, and you can't sandwich it in.

It might be, for example, something involving sentencing – very important, but absolutely arcane, very hard, even when I'm listening to it, to figure it out.

Now, this term, for the first time, we have pretty much contemporaneous transcripts, which we've never had before. Everything until this year that you heard on the air when I do my recapitulations was based on my notes. And in some ways, the transcripts have been far more revelatory to me than the audio is.

I want to add, Bob, here, I'm not making an argument against having the tape. I'm just saying that if anybody thinks that having the tape will make it more easily understandable, they are wrong.

BOB GARFIELD:
Well, Nina, thank you very much for joining us.

NINA TOTENBERG:
My pleasure.

BOB GARFIELD:
Nina Totenberg is the legal affairs correspondent for National Public Radio