The Supreme Court Unplugged

by Wendy Bay Lewis

First published in Voir Dire, a publication of the American Board of Trial Advocates (Summer 2007).

Three years after Miranda was decided by the Supreme Court in 1966, I worked one summer during college as a cub reporter for Chicago’s City News Bureau.  One of my regular stops was Boys’ Court where Judge Saul Epton heard criminal cases involving teens between the ages of 17 and 21.  Luckily for me, his court was always busy and he made sure the City News reporter stood at his right elbow when court was in session.  To my right, and a step down, stood the bailiff.  His job was to keep the docket moving and, in keeping with Chicago tradition, he accepted gratuities from attorneys who wanted to jump ahead in line.  From my vantage point wedged between the two of them, I was transfixed when Epton would ask a police officer to repeat exactly what he had said to a teen suspect at the time of arrest. 

The officer answered slowly, “You have the right to remain silent.”  The Judge nodded, raised his left hand, and curled his index finger down to meet his thumb.  The policeman continued carefully, “Anything you say may be used against you.”  Epton’s middle finger went down.  The courtroom went quiet.  The officer began to sputter and put his hand in his pocket to fish out the card with the four warnings.  Before he could retrieve it, Judge Epton raised both arms above his head like a referee and then brought his hands together in front of his face with his index fingers crossed.  “Officer,” he bellowed, “the defendant’s confession is inadmissible.  Case dismissed.”  He pounded the gavel like an anvil on glowing iron and the embarrassed officer retreated.

I watched Epton’s Miranda drills more than once, but I never called-in a story about what I saw and heard on those occasions.  No one in the courtroom seemed impressed, so I assumed it was routine.  Perhaps if I had understood the gravity of the moment, I could have composed a sophisticated lead like, “Judge Epton relied on the Supreme Court today to protect a teen’s right against self-incrimination” or “Judge Epton is changing Chicago police practices in response to the Supreme Court’s holding in Miranda v. Arizona” or even, “a police officer was publicly humiliated in Boys’ Court today when he failed to recite the Miranda warnings.”  Clearly I was no Greta Van Susteran.

Less than a decade later, reporters like Nina Totenberg at National Pubic Radio, Linda Greenhouse at the New York Times, and Tony Mauro for Gannett News Service and USA Today had established a Supreme Court beat and an audience well beyond the legal community.  While trial judges like Epton, who died in 2001, were busy tailoring the meaning of Supreme Court decisions to fit real cases, legal affairs correspondents were explaining the Court’s pronouncements in plain English.  Like me, they went to court to get their stories.  Presumably, they were far better prepared than I had been, but until recent years they still relied primarily on what they saw and heard.  Written transcripts existed, but they were not available without significant delay and expense.  Similarly, audiotapes existed, but few people knew about them.  All that changed in 1993 when Supreme Court expert and civil libertarian Peter Irons forced public access to the Court’s recordings and cracked open the door to the most tightly-controlled public forum in America.

Irons, who graduated Harvard Law School in 1978, pursued a law degree later in life than most of his peers.  Between 1966 and 1969, he spent more than two years in federal prison because he refused to be drafted. After that he went to Boston University for his Ph.D. in political science.  He told me the story that put him at the center of the controversy over the tapes.  In one of his Harvard classes, students studied the art of legal argument by listening to a tape of the lawyers who argued Kent v. Dulles before the Supreme Court.  The case, he recalled, involved an artist who was wrongfully denied a passport because he refused to sign an affidavit about his Communist Party affiliations.  Irons forgot about the audiotape until he was directing the Earl Warren Bill of Rights Project at University of California, San Diego.  His job was to develop innovative teaching materials for high school and college students and he liked the idea of using the Court’s audio-recordings in the classroom. 

Chief Justice Earl Warren, on the bench from 1953 until 1969, began taping Supreme Court arguments in 1955.  Irons speculated, when I interviewed him, that “Warren may have realized the value in the Brown case” which, unfortunately, had not been recorded.  The tapes, he said, “piled up” for years without any arrangement for their preservation and “the National Archives wanted to take them.”  In 1991, Irons identified 23 landmark cases including Miranda for a print and audio collection of transcripts to be published under the auspices of the Earl Warren Project.  When he arrived in Washington to review the tapes, he learned for the first time that Chief Justice Warren Burger had restricted duplication of the tapes in 1986 after a CBS reporter broadcast excerpts of arguments in the Pentagon Papers case (New York Times v. United States, 1971). 


Irons challenged the Court’s restrictions, won public access to the tapes, and two years later produced May It Please the Court: The Most Significant Oral Arguments Made before the Supreme Court since 1955.  Irons went on to publish three more books of transcripts in cases on student rights, abortion, and the First Amendment. 

In November 2005, during the Senate Judiciary Committee’s hearing on whether to allow cameras in federal courts, Irons testified in favor of televising coverage.  In his prepared statement, he pointed out that the Supreme Court’s audiotapes “have been played in thousands of classrooms, from middle schools through law schools” and that he has received “hundreds of letters, phone calls, and e-mails from students and teachers who have shared their excitement at hearing these historic arguments.”  He added that in the previous five years “the Court itself has released audio-tapes.... along with pictures of the lawyers and justices, with no damage to the Court’s reputation.”  The Court’s protectiveness is unwarranted because, as he told me, except for legitimately private conferences among the Justices, “all else is public record.” 

The Court’s control over its public persona is similarly “ironic and troublesome” for Jack Doppelt, an expert on media ethics and a professor at Northwestern University’s Medill School of Journalism. At a time when the amount of hard news is shrinking, he thinks “what is civic about the Court could get lost” unless the Court is more open.  A graduate of the University of Chicago Law School and former clerk for an Illinois Supreme Court justice, he is adamant that courts are vital places for learning “what we would not know otherwise” about public affairs.

When I interviewed Doppelt in his office, the atmosphere was more like a press room than academe.  One of his former students, imbedded with the press corps in Iraq, had just emailed an ethics question to him and a colleague was calling to solicit his opinion about a potential defamation lawsuit against the Chicago Tribune.  As a former investigative reporter and news producer, Doppelt lamented that civic news is drowning in an ocean of entertainment, celebrity, sports, and consumerism. “That’s the tide and it won’t come back,” but for him, “it’s all the more reason to go against the tide.”

He is concerned that media coverage about the Supreme Court is skewed toward a handful of high profile cases each term when more than 100 are decided.  To add balance, he created a student-driven, web-based news service in 1998 called On The Docket which profiles each case and both sides.  He assumed that the primary audience would be journalists, but surprisingly, a huge segment of visitors turned out to be students of all ages including high school and college debaters.

The Justices are known to oppose televising oral argument, but  they are comfortable and generous communicating with the public through books, lectures, and educational presentations.  Television is not entirely off-limits.  On November 23, 2005, Justice Stephen Breyer appeared on Larry King Live for what King called “a rare in-depth one-on-one with a sitting member of America’s highest court.”  After a brief discussion about Justice Breyer’s new book, King asked, “Why can’t a camera be – what is so sacrosanct?”  The Justice was candid in his reply, using the example of “a close case” in which Arkansas tried to impose term limits on its members of Congress and lost (U.S. Term Limits v. Thornton, 1995).  The risk posed by television, Breyer feared, would be that the public would assume that Justices make their decisions solely on the basis of oral argument, which is “like five percent of the whole thing,” rather than their examination of history, legal precedent, and possible outcomes.  From the arguments alone, the public might think “here are nine people who really don’t purport to have the answer.”  Breyer was not joking.  He was making the point that cases are complex and so is the Justices’ decision-making process. 

During the first national celebration of Constitution Day, Justices Breyer and Sandra Day O’Connor were featured in a broadcast and video for schools produced by the National Archives, National Public Radio, the New York Times Knowledge Network, and Justice Learning, an educational project and web site funded by the Annenberg Public Policy Center at the University of Pennsylvania.  For more than 10 years, the Supreme Court Historical Society and Street Law, a nonprofit educational organization, have offered an annual training institute for fifty teachers that includes the opportunity to watch the Court announce its decisions at the end of the term in June.

Explaining the role of the Court to a general audience is a challenge.  When Peter Irons looked for books about the Court, he was perturbed that most authors focused on the Court or the Justices rather than the people who were seeking relief.  So, as he explained to me, he decided to write a book organized around the litigants’ stories.  He identified cases in which average Americans, who reflected racial, ethnic, gender, and economic diversity raised “significant issues of Constitutional rights.”  Then, he traveled around the country, interviewed those whom he could find and who were willing to talk to him, and wrote their accounts.  The result, published in 1988 and used widely in colleges, is The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court.  A similar book, now more than fifteen years old, is In Our Defense by Ellen Alderman and Caroline Kennedy, which covers cases that illustrate the Bill of Rights.  Irons told me he always wondered why, given the popularity of his book, the publisher did not ask him to write a sequel.


Today, of course, there are numerous web sites where you can read decisions, find scholarly legal articles, and see bloggers’ instant critiques.  You can listen to oral arguments and download podcasts at OYEZ® U.S. Supreme Court Multimedia founded by Northwestern University Professor Jerry Goldman who also produced a CD-ROM called The Supreme Court’s Greatest Hits.  Beginning with the October 2006 term, the Supreme Court’s own web site offers same day transcripts of oral arguments in PDF format. 


All of these examples demonstrate that Americans are eager to know more about the Court and that the Justices can be more open (more civic) without risking damage to their stature.  In fact, the only way to protect the Court’s prestige, other than waiting for the judgment of history, is to communicate directly, frequently, and authoritatively with all Americans.  If there is a risk that publicity (including, but not limited to, televised argument) could trivialize or sensationalize the Court, that risk is inherent in a democracy.  The Justices’ real frustration is that their written opinions are reduced to sound-bites and scorecards. 

The solution is more communication, not less.  Perhaps the Chief Justice could hold an annual press conference at the end of the term to discuss the Court’s accomplishments. There is already an annual pre-term conference, now in its 20th year at William and Mary School of Law, that brings together journalists and scholars every September. The Justices could also increase openness by hearing cases once a year in a venue outside Washington, like Chicago or the National Constitution Center in Philadelphia, where the public could be invited to the proceedings.  In Montana, where I live, the state Supreme Court usually celebrates Law Day on May 1 each year by holding court at one of the universities and inviting local high school students to attend. 

In contrast to the rarefied air at the Supreme Court, Boys’ Court was a lowly and lonely outpost.  Nevertheless, Judge Epton’s authority was secure because he took so many opportunities to educate everyone in the courtroom about the legal system.  Even though his efforts were sometimes lost on me, his dedication to justice was not.  After my summer at City News, I reconsidered the idea of becoming a journalist and entered law school two years later.