Did you see — or rather hear — the way octogenarian Supreme Court Justice Ruth Bader Ginsburg smacked down smart-alecky newcomer Neil Gorsuch during Tuesday’s arguments at the Supreme Court?
Probably not, unless you were present at oral arguments in the case of Gill vs. Whitford.
The New Yorker’s Jeffrey Toobin, who was there, assures us that Notorious RGB owned Gorsuch with her response to his “patronizing lecture” about how the Constitution might not authorize the court to disturb an overly partisan redistricting plan.
Toobin writes that Ginsburg — in her “still Brooklyn-flecked drawl” grumbled: “Where did ‘one person, one vote’ come from?” It was, he said, a “revealing moment.”
Having read the transcript of the argument, which was posted on the court’s website late Tuesday, I’m not so sure. It would have been nice to check Toobin’s impression against an audio recording of the argument, but that won’t be available until Friday, consistent with the court’s usual practice.
Given the importance of the case, four members of Congress had asked the justices to allow simultaneous online access to audio of the arguments. But their request was rejected. In a letter to the members, Jeffrey P. Minear, counselor to Chief Justice John G. Roberts Jr., cited the justices’ “concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and justices.”
But it wasn’t just that the arguments in the redistricting case weren’t live-streamed. They weren’t even posted on the court’s website a few hours later, as has been done with arguments in other high-profile cases, including the original challenge to the Affordable Care Act (who can forget Justice Antonin Scalia’s question about broccoli?) and lawsuits over same-sex marriage. So the court actually seems to be going backward when it comes to transparency.
Same-day audio should be the practice in every case. It would make it more likely that radio, television and online news programs would cover arguments, because they could include excerpts (yes, the dreaded “sound bites”) from the justices’ questions and comments. That breaking news coverage would impel ordinary citizens to go to the court’s website and listen to the arguments of the day.
And the arguments wouldn’t be just educational; sometimes they’d be entertaining. Hearing Ginsburg give it to Gorsuch might not be your thing, but you might enjoy listening to Justice Elena Kagan recalling parties “long, long ago” at which “marijuana was maybe present.” (She made this reference during Wednesday’s argument over arrests made at a late-night party in Washington, D.C., in 2008.)
Many arguments wouldn’t be entertaining or even illuminating; the court’s docket includes a lot of mind-numbingly technical matters that bore even lawyers. But to the extent that citizens or the news media are interested in what is said at the court, it’s absurd to suggest that same-day audio would undermine the decorum of the institution.
If Toobin is to be believed, the justices snipe at each other even when there’s a tape delay. If we are going to read about Notorious RBG taking Gorsuch down a few notches, we ought to be able to listen to her as well.