Hidden High Court

A federal marshal made headlines this spring when she seized and erased the audio recorders of two reporters covering a speech by Justice Antonin Scalia at a high school in Hattiesburg, Miss. She told both journalists that the seizure was in accordance to Scalia’s policy against the recording of his speeches.

The April 7 incident drew immediate criticism from the news media, and ultimately resulted in a rare apology from the justice.

It also highlighted the question of the news media’s access, or lack thereof, to the justices of the Supreme Court of the United States — who, despite their extraordinary influence, are fairly unknown to the public at large.

As Nat Hentoff observed in an April 16 column in The Village Voice, a 1990 poll found that 59 percent of Americans could not name one Supreme Court justice. There is nothing to suggest that the percentage has changed much over the years. Supreme Court proceedings have never been videotaped, and justices tend to keep a low profile.

“The justices tend not to do interviews, period,” says Supreme Court spokesperson Kathy Arberg. “There are very rare exceptions, such as when a justice gives an interview relating to a book” that the justice wrote.

Justice Sandra Day O’Connor, for instance, gave interviews to The New York Times, CNN and others to promote her 2003 book, “The Majesty of the Law.” Chief Justice William Rehnquist has also given interviews in connection with his books.

In addition, all nine of the current justices give speeches in public, some more often than others. Rehnquist frequently addresses audiences on such topics as the state of the legal profession, judicial administration and legal history. Justice Ruth Bader Ginsburg is well known for promoting women’s issues, while Stephen Breyer, a former Harvard law professor, tends toward more scholarly topics, such as administrative law and judicial rule-making.

At the other end of the spectrum, Justices David Souter and Clarence Thomas make relatively few speeches. Thus, when Thomas defended his controversial views on race in a 1998 speech to the National Bar Association, an organization of African-American attorneys and judges, it gained national media attention.

Typically, justices speak at such events as commencement ceremonies, bar association meetings or conferences of other judges. By tradition, each justice also speaks at the annual meeting of the judges of the circuit court over which he or she presides.

Media access to speeches by the justices varies, and can be influenced by the setting. If a justice agrees to speak to a private organization, for example, the organization’s own policy may affect press access. “The arrangements are worked out between the inviting organization and the justice,” says Arberg.

When it comes to the high court’s official business, the news media enjoy considerably better access. Oral arguments are always open to the public and press, although cameras and recording devices are forbidden. In cases of great public interest, the court has recently begun releasing audio recordings after the argument concludes. The court also releases a transcript of every argument — although it does not specify which justices asked which questions, and it typically takes up to three weeks for a transcript to be released.

But nonofficial business is largely the domain of the individual justice. The tape-recording incident involving Scalia, for example, publicized the fact that he has a specific policy against any audio or video recording of his remarks. Arberg says she does not know if any other justices on the court have such policies.

In an April 9 reply to a letter of protest from The Reporters Committee for Freedom of the Press, Scalia wrote he would revise his policy to permit the print media to record his remarks for purposes of ensuring accuracy. However, he added, “The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue.”

But there are no clear rules governing a judge’s ability to enforce such preferences. In response to the Scalia incident, Sens. Charles Schumer (D-N.Y.) and Patrick Leahy (D-Vt.), both of the Senate Judiciary Committee, urged the Administrative Office of U.S. Courts in an April 12 letter to establish “clear guidelines for judges setting the public or private nature of their remarks, and the appropriate remedial steps that may be taken when the judges’ requests are not honored.”

For the foreseeable future, it appears that media access to Supreme Court justices will remain an ad hoc affair, regulated mostly by the justices’ individual preferences and the media’s willingness to push the issue.