UPDATE: Later on Thursday, the media coalition issued a clarification of its requests. See below.
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A long list of news organizations on Friday asked the Supreme Court to release, for broadcast, the Justices’ oral announcement of the coming decision on the constitutionality of the federal health care law. In a letter sent by the Reporters Committee for Freedom of the Press, the news outlets asked for something the Court has never done: promptly release a recording of what the Justices say on the bench when they deliver a final opinion. The letter is here.
Although it is not unprecedented for the Court to do something it has never done previously, the chances that it will grant this request appear to be remote to non-existent. The Court does record the oral announcements from the bench, but those are not released until after they are sent — at the end of each Term — to the National Archives in Washington.
When the Justices go to the bench to announce rulings, the author of the opinion — or the lead opinion, at least — will describe in fairly brief summary what has been decided. Now and then, but not routinely, dissenting Justices will announce summaries of their objections to a ruling. Those announcements, of course, have historic value — especially when the Justices ad lib, saying something that appears nowhere in their written opinions.
In their new letter, the media outlets said “there is a strong interest nationwide in the Court’s [expected] opinion and any comments by a member of the Court that may accompany its announcement. Such access would allow the public to be informed of the Court’s ruling in a timely manner.”
It is not clear, from the contents of the letter, that the authors of the letter understand the Court’s operating norms. Even when the Court releases the audiotapes of its hearings (as it did with the health care arguments in late March), it does not do so “live” — that is, as it is occurring. Those tapes are released after the hearing is over. So, in asking for “live audio access,” the letter was seeking something that would be a truly historic breakthrough in public access to the Court’s work.
Moreover, the concluding parts of the letter are somewhat baffling in what it seeks. It asked the Court to allow “live audio and video coverage” of the announcement “in the same manner” that the Court sometimes permits “delayed audio recordings of oral arguments.” The “manner” of the tapes’ release is never “live,” but always is delayed. If the Court does not do the now-rare act of releasing the tapes on the same day of the argument, it releases them at the end of that week. The letter did conclude in asking, “at the very least,” for release of the announcement comments “immediately” after they are made.
Copies of the letter were sent to each of the nine Justices. While Chief Justice John G. Roberts, Jr., would have the nominal authority on his own to decide how (or whether) to respond, he also would have the option of sharing the matter with his colleagues. If there is no public response, then one may assume that the request has gone nowhere.
NOTE TO READERS: In response to inquiries, the Reporters Committee later released this statement:
“CLARIFICATION: Media coalition asks U.S. Supreme Court to allow audio, video coverage of health-care reform opinion
“(Clarification of earlier release and letter to the Supreme Court)
“The Reporters Committee and media coalition are asking the Court to allow live audio and video coverage of the release of the opinion in the health care cases. In the conclusion of the letter, we are asking that if the Court decides not to allow live audio and video, that it at least release the Court’s own audio recording of the hearing as soon as the hearing ends.”
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