The Supreme Court will get rid of a little bit of its secrecy next week when it abolishes the practice of keeping justices’ names out of the official record of argument sessions.
For decades, transcripts have listed “Question,” without identifying the questioner.
Reporters and legal scholars have complained that the practice was unusual, especially because the sessions are open to the public.
“The notion of an oral argument, keeping it secret, that’s just silly,” said Herman Schwartz, a constitutional scholar at American University in Washington. “You’re talking about an institution that tries to shroud itself in mystery and stay out of the limelight as much as possible.”
The court announced this week that names will be included now “in the interest of the accuracy and completeness of the transcripts for reporting, research and archival purposes.”
It is the latest in a series of steps to bring the court into the computer age, including putting the transcripts on the court’s Web site.
Cameras and tape recorders are banned in the courtroom. But in 2000, the court immediately released a court-made tape recording of the Bush v. Gore argument over the contested presidential election results in Florida.
Since then, the court has released audio of other high-profile cases, such as the recent terrorism appeals that tested the Bush administration’s wartime powers.
The camera ban is not expected to change anytime soon. Sketch artists provide the only glimpse of the black-robed justices.
The Supreme Court first began regularly providing transcripts of oral argument in 1968 and adopted the practice then of excluding justices’ names. Transcripts were sometimes made of arguments dating back to 1935, by private shorthand reporters who would include justices’ names, according to the court.
New pledge case
Justices once again are considering a case involving the Pledge of Allegiance.
Justices were asked this year whether the pledge and its reference to God belong in public schools. They got rid of the red-hot case without ruling on that issue.
Now, a Colorado man wants the court to decide if the oath belongs in courthouses.
Frank Herbert Wonschik was convicted of possessing parts for a machine gun in 2002 by a jury that recited the pledge after hearing a patriotic speech from the judge.
His federal public defender, Jill Wichlens, said in court papers that judges hearing cases involving the government now had an invitation to “begin trials in their cases by having the jurors pledge their allegiance to a party to the litigation.”
The appeal is among more than 1,800 that justices will likely act on next week when they open a new nine-month term. Most of the appeals will be turned down.
“A denial in this case will be seen as a stamp of approval that there’s nothing wrong with this practice,” said lawyer David Porter of Sacramento, Calif. He works with the National Association of Criminal Defense Lawyers, which opposes judge-led pledges.
Porter and other lawyers were unsure how common it was for judges to lead juries in the pledge to “one nation under God.”
Wonschik was sentenced to more than two years in prison. He appealed on the ground that he did not get a fair trial.
Government lawyers argued that Wonschik had no basis to challenge the pledge because jurors, not Wonschik, were asked to recite it.
The Supreme Court found problems with their last Pledge of Allegiance case. They ruled that California atheist Michael Newdow could not pursue a case on behalf of his daughter because he did not have full legal custody of her.
In the Newdow case, Justice Antonin Scalia stepped down after Newdow complained that the conservative justice mentioned the case during a religious rally and indicated that he believed the pledge was constitutional.
Rex Curry, a Florida lawyer who wants justices to hear Wonschik’s case, filed a request for Scalia to recuse himself from this case. Because Curry is not directly involved in the appeal, the paperwork is being treated as a “suggestion,” and Scalia does not have to respond.
Curry argues that Scalia and other justices might be biased if they participated in “schools that had a daily robotic chanting on cue from the government.”