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Why Has the Supreme Court Been So Reluctant to Allow Cameras and Audiotapes?

Aired December 1, 2000 - 2:40 p.m. ET


NATALIE ALLEN, CNN ANCHOR: Well, today is regarded by many as a critical day in the history of our Supreme Court, the U.S. Supreme Court. For some perspective on today's events, we go now to Professor Peter Irons, excuse me, who has written eight books on the high court. His latest is "A People's History of the Supreme Court." Welcome.

PETER IRONS, AUTHOR: Thank you, Natalie.

ALLEN: Well, after today's historical audiotape version of the Supreme Court, will you be writing another book?

IRONS: Well, it's interesting, as the person who put out the first set of Supreme Court oral argument tapes, and the court was very upset about that back in 1993. I'm now delighted that the public can hear this and in fact understand more are about what happens inside the court's chambers.

ALLEN: It was extraordinary. Why has the court been so reluctant to come out into the public more?

IRONS: Well, the arguments have always been that it would encourage lawyers to put on a show, to ham it up for the cameras or the microphone. I don't think that that would happen. In fact, today's arguments showed that it was a very serious, very pointed discussion of issues, and I don't think that anybody was playing for either the camera or the audience.

ALLEN: Listening to it certainly made you want to be there. Have you been -- I take it, you've been inside of the U.S. Supreme Court during many arguments?

IRONS: Well, I have, and as a member of the Supreme Court bar, it's very exciting to be there and sit up close and listen to the arguments and participate in them. But for the public, especially people who've never been to the Supreme Court, an understanding of what this place is about, what it's like, and all of the historical background, is, I think, one of the advantages of bringing the tapes to the public in this case.

ALLEN: Well, what did we miss from not being able to sit in there as far as some of the other -- some of the decorum that goes on during these arguments? IRONS: Well, one thing and, of course, we didn't have cameras to pan around the courtroom, it's actually a very small and intimate chamber. It only seats a couple of hundred people. It's place of very awe-inspiring in its setting and I think what people might have missed is the interplay between the justices on the bench.

There's very often a sort of back and forth banter between them as they're asking questions, particularly with Justices Scalia and Ginsburg sort of doing a "CROSSFIRE" type of thing. And the public, I think, should be aware that the questions are normal. Lawyers don't get very far in their arguments without being interrupted.

ALLEN: We certainly noted that. That was predicted yesterday that a lawyer wouldn't get one minute into his presentation before he was interrupted. And that, that happened. I believe it was Miss O'Connor that started first. Well, how do you gauge this case today as far as its places in history with other major cases we've seen the United States Supreme Court rule on?

IRONS: Well, lawyers and historians both look for precedent and there really isn't any direct precedent in this case. I was surprised, frankly, when the court agreed to hear the case and many of the questions today were of the why should this case be before the court? Now, the court has this rule of four where any four justices can vote to hear a case, but that doesn't guarantee that there'll be a majority for the position of those justices.

So -- but if we look at historical precedent, the court has had cases of great importance before it decided very quickly in the past -- the Pentagon papers case of 1972; the Little Rock school integration case in 1958. These were cases in which the court felt that there was an issue of such importance to the nation and to the parties that it needed to be decided. It needed to be decided quickly. And so they scheduled argument and briefing very rapidly and made a decision within a few days.

ALLEN: Will this define where this court stands on the federalism issue?

IRONS: Well, it's interesting that federalism, of course, is now one of the themes of the Court. The Court, we can say, has become more conservative in giving states more power as against the federal government. And in fact, this court has struck down a number of federal statutes on the grounds that the states had the power in that area.

So one, this is sort of a reversal here, because the liberals or at least the Gore camp is asking that the state power be upheld, the state Supreme Court be deferred to. Justice Ginsburg, who said we owe deep respect to the decisions of state's courts, is usually one who comes down in favor of expansive federal power.

ALLEN: We hear that they all go in the room together and deliberate. Is that correct?

IRONS: Yes, they go into conference. They're probably going to have the conference this afternoon or tomorrow. In fact, the court used to hold its conferences on Saturdays. They can hold one anytime. And the conference will decide whether there's going to be a unanimous opinion. The court, in fact, could issue what's called a per curiam -- a unanimous order of the court and then follow it up later on with written opinions.

ALLEN: Does it usually take one conference for the justices to make up their mind?

IRONS: No, conferences can extend over any length of time. For example, during Brown versus Board of Education, the famous school segregation cases, the court had multiple conferences because they -- Chief Justice Warren was determined to get a unanimous court, but he had to bring along two or three justices who were very hesitant in that case, and so they had conference after conference, and of course, they meet informally outside of the conference room and the final vote doesn't necessarily come in the first conference.

ALLEN: Peter Irons, thank you for talking with us.

IRONS: Thank you, Natalie.



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