It's All Politics
5:25 pm
Wed April 24, 2013

Once Under Wraps, Supreme Court Audio Trove Now Online

Originally published on Thu April 25, 2013 3:57 pm

On Wednesday, the U.S. Supreme Court heard oral arguments in the final cases of the term, which began last October and is expected to end in late June after high-profile rulings on gay marriage, affirmative action and the Voting Rights Act.

Audio from Wednesday's arguments will be available at week's end at the court's website, but that's a relatively new development at an institution that has historically been somewhat shuttered from public view.

The court has been releasing audio during the same week as arguments only since 2010. Before that, audio from one term generally wasn't available until the beginning of the next term. But the court has been recording its arguments for nearly 60 years, at first only for the use of the justices and their law clerks, and eventually also for researchers at the National Archives, who could hear — but couldn't duplicate — the tapes. As a result, until the 1990s, few in the public had ever heard recordings of the justices at work.

But as of just a few weeks ago, all of the archived historical audio — which dates back to 1955 — has been digitized, and almost all of those cases can now be heard and explored at an online archive called the Oyez Project.

Oyez Project founder and director Jerry Goldman tells NPR the digital recordings archive began in the early 1990s from a simple idea: to give the public access to unabridged Supreme Court recordings.

The archived cases range from the legally technical to historic, including landmark rulings like Loving v. Virginia, the 1967 decision that a state's ban on interracial marriages was unconstitutional; Roe v. Wade, the 1973 decision declaring a woman's constitutional right to an abortion; and Bush v. Gore, the case that ended vote-counting in Florida and effectively handed the 2000 presidential election to George W. Bush.

Goldman tells NPR that the audio exposes the court's work in a way that allows for a deeper understanding than the public can get from journalists who cover the court or even from reading transcripts of proceedings. "I would rather listen to the opera than read the libretto," he says. "I get much more information from the listening experience than I would from reading the transcript."

It also shows how the court has changed, he says: "In the 1950s and '60s, advocates could elaborate at length without interruption, drone on in some circumstances," he says. "That is very rare in the Supreme Court today. I don't think you can get 20 words in before someone on the bench poses a question."

The Oyez Project also has recently released a mobile app for the iPhone and will have an Android version out this summer, Goldman says.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

At the Supreme Court today, justices heard the last oral arguments of the term. Between now and the end of June, they're expected to deliver decisions in big cases involving affirmative action, the Voting Rights Act, and gay marriage.

In the meantime, you can listen to audio of those arguments and others dating back to 1955 online in an archive called the Oyez Project. The project's founder and director is Jerry Goldman, and he joins us now from Chicago. And we should explain first of all, O-Y-E-Z, the word oyez.

JERRY GOLDMAN: Yes, that's the plural imperative of the French verb oyer, to hear. And it means hear ye, pay attention. And it's announced in the Supreme Court by the marshal of the court, with the arrival of the justices.

(SOUNDBITE OF ARCHIVED AUDIO)

UNIDENTIFIED MAN: The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States, oyez, oyez, oyez. All persons having business before...

SIEGEL: Oyez, oyez, oyez. How much audio have you assembled in this project so far?

GOLDMAN: More than 10,000 hours going back to October 3, 1955. It exists in the National Archives on reel-to-reel tape.

SIEGEL: Well, to give our listeners a sense of what's in the archives, at least what they can hear in the archives, we've pulled a few excerpts. You can also see simultaneously the transcript of what is being said and a picture of the justice who's speaking at that moment.

Let's start, though, with the 1966 case Loving versus Virginia. The Lovings were a mixed-race couple. And why don't you remind us what the case was about?

GOLDMAN: Well, this case challenged a Virginia statute that made miscegenation, mixing of the races, a criminal act. And the Lovings defied that law and challenged its constitutionality.

SIEGEL: Well, in this excerpt, we're going to hear from Virginia's assistant attorney general at the time, R.D. McIlwaine. We'll also hear questions from Chief Justice Earl Warren.

(SOUNDBITE OF ARCHIVED AUDIO)

R.D. MCILWAINE: Text writers and judicial writers agree that the state has a natural, direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families, and in minimizing those which do not. It is clear from the most recent available evidence on the psychosociological aspect of this question that intermarried families are subjected to much greater pressures and problems than those of the intra-married, and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage, or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.

CHIEF JUSTICE EARL WARREN: There are people who have the same feeling about the interreligious marriages. But because that may be true, would you think that the state could prohibit people from having interreligious marriages?

MCILWAINE: I think that the evidence in support of the prohibition of interracial marriage is stronger than that for the prohibition of interreligious marriage. But I think that the...

WARREN: How can you how can you say that?

MCILWAINE: Well, we say that principally...

WARREN: Because you believe that?

MCILWAINE: No, sir. We say it principally on the basis of the authority which we have cited in our brief...

SIEGEL: And he cites a book on intermarriage which was the definitive text of the day on the subject. What did you find noteworthy when you listened to that case being argued?

GOLDMAN: Seems to me he was doing the best he could with a weak hand. The evidence obviously did not prove persuasive with the justices who, I believe, were unanimously in favor of invalidating the law.

SIEGEL: We are pushing 60 years now of audio archives of Supreme Court arguments. It's a very stylized, a formal way of speaking. But do you hear great differences in the way people express themselves in these arguments back in the 1950s and more recently in the 21st century?

GOLDMAN: Oh, yes. In the 1950s and '60s, advocates could elaborate at length without interruption, drone on in some circumstances, in some cases. That is very rare in the Supreme Court today. I don't think you can get 20 words in before someone on the bench poses a question.

SIEGEL: Yes, whenever there's an argument these days that we hear - whether it's about health care or same-sex marriage - bang, somebody stands up and says, I'd like to address the issue. And there's a question right there.

GOLDMAN: And part of this, I think, is to - we have to recognize that this is the one opportunity where nine justices assemble prior to the point where they meet in conference to decide these cases. This is the one opportunity when they can share their understanding and their concerns about a case with each other. So it's not simply grilling the advocates. It's also a way of communicating to their colleagues what they're thinking about.

SIEGEL: Well, now we're going to hear an excerpt from Roe versus Wade, the case that legalized abortion 40 years ago. We're going to hear from Sarah Weddington, the lawyer representing Roe and from Justices Harry Blackmun, Byron White and Potter Stewart.

(SOUNDBITE OF ARCHIVED AUDIO)

SARAH WEDDINGTON: Here, we have a person, the woman entitled to fundamental constitutional rights as opposed to the fetus prior to birth where there is no establishment of any kind of federal constitutional rights.

JUSTICE HARRY BLACKMUN: Well, do I get from this then that your case depends primarily on the proposition that the fetus has no constitutional rights?

WEDDINGTON: It depends on saying that the woman has a fundamental constitutional right and that the state has not proved any compelling interest for regulation in the area. Even if the court, at some point, determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.

JUSTICE BYRON WHITE: And that's what's involved in this case, weighing one life against another?

WEDDINGTON: No, Your Honor. I said that would be what would be involved if the facts were different and the state could prove that there was a person for the constitutional right.

JUSTICE POTTER STEWART: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?

WEDDINGTON: I would have a very difficult case.

STEWART: You certainly would. You'd have the same kind...

SIEGEL: That was Justice Potter Stewart at the end. That audio is from 1972. How unusual was it to have a woman arguing before the Supreme Court in those days?

GOLDMAN: Fairly unusual, but not unique. There were other examples. But certainly an exception to the general rule that most of the advocates were men.

SIEGEL: Professor Goldman, as a career radio person, I can't think of a better thing to do than preserve the audio of the Supreme Court's arguments. But would you love to see video instead?

GOLDMAN: Yes, I think video would certainly help understand even more than audio, the emotional state of the participants. Of course, more data is - to my mind - always better.

SIEGEL: And this project of archiving, its significance to you?

GOLDMAN: Its significance to me is that it provides a record that exposes the court's work in a way that achieves more understanding. By providing the audio, it satisfies my sense that I would rather, in a way, rather listen to the opera than read the libretto. I get much more information from the listening experience than I would from reading a transcript. So that to me is one of its principal virtues. It has many more as we know from the thousands and thousands of people who access this content every day.

SIEGEL: You are in a - perhaps a unique position to answer the question that people always put to Supreme Court reporters, which is: Can you tell from the arguments what the outcome will be? Since you went to each case knowing what the outcome was, was that evident to you in the arguments as you heard them? Or were you surprised to hear the tone of the discussion in court, knowing what the decision was ultimately?

GOLDMAN: I think it's a mixed answer. I think if we can expose more of the emotional content of the speaker and parse that into our research endeavors, I think that may assist us. Although I know Justice Roberts, before he joined the Supreme Court, had a theory that the number of questions that your opponent gets tells you he's likely to lose. So...

(LAUGHTER)

GOLDMAN: ...answering more questions.

SIEGEL: You want to be sitting there without getting - without attracting attention during (unintelligible).

GOLDMAN: That's - I think that's the case.

SIEGEL: Professor Goldman, thank you very much for talking with us today.

GOLDMAN: Mr. Siegel, it's been a true pleasure for me.

SIEGEL: Jerry Goldman is founder and director of the Oyez Project, which is supported by the Illinois Institute of Technology's Chicago-Kent College of Law. Transcript provided by NPR, Copyright NPR.