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tv   Supreme Court in the Digital Age  CSPAN  November 30, 2013 5:45am-7:01am EST

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lawyers help screen cases and write opinions. any clerks seen talking to reporter for more than 90 seconds will be fired. i don't know if that rule still i know some people at law firms and then they go off to be a law clerk them,year and i say to well i will talk to on the other side. it would be deleterious to their careers to talk to me during the clerkship. that is one reason why it is so rare because law clerks would be a great source for pending or a recently issued
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decision, how it came about. but it just never happens. think that it probably was either a justice or injustice is relative because nobody's going to discipline them for talking to the press, but it law clerk -- it could really be a career ending move for a law clerk to talk to the press and give that kind of information. why did it happen this time? i think the emotions were so , there was so much -- there were a lot of conspiracy theories especially when the decision did come out and it seemed so anomalous for the court to declare the affordable on onet constitutional part of the constitution and
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constitutional under another part, i think people were looking for the explanation behind these -- behind this particular decision. my suspicion is that it was a justice or injustice is a close relative. >> i will ask pete to jump in. why aren't you getting stories like this on a regular basis? >> let's keep our eye on the ball here. the sort of scoops that one values from the justice department is what they're going to do. who are they are going to indict, what the department's policy is going to be about , whocuting marijuana users the attorney general is going to choose to do something, with the president is going to nominate to be the next justice. so the number of leaks about what the court is going to do is very small. look, >>er-the-fact --
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give jan her do with an interesting story. who knows whether it is true. i have heard so many variations on it i think we will have to justicesl all the involved in this diary see the papers. it is to some extent a footnote about the real story, which is the court upheld the obamacare decision. question of whether a justice changes his or her vote is yeah, so what? they do that fairly often. one of the things one has to argue, i think is that the tenor of the story if not the person who provided the story is that the chief justice changed his vote heard that is wrong, how dare he? there is a certain ideological point of view to the people who provided the story. i think the people are mad at the chief justice changed his vote if indeed he did. i would argue that this is scotus blog fodder, this is
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fascinating stuff for the people who care about the internal machinations of the court. for the public at large the question is am i going to have health insurance or not? i guess part of the reason is that we don't spend a lot of our time trying to find out those internal machinations of the court because for us the action is what the court actually does. that is in the decisions. it structurally is just set up that way. i mentioned earlier that the people who would know this would be a very small number. the justices themselves, the law holys who in essence take orders not to talk about this stuff. about ithem will talk years later but some law clerks will never talk about what they did when they were law clerks. so it is just different. the whole engine that drives leaks in other government institutions is completely
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different. there are many motives for leaks . you leak something because you want to shoot down what you think is going to happen. you leak something because you get it outically there and see how it is going to go. you test it out and launch a trial balloon. you leak just to say i know something you don't know and enhance your credibility. drive leakse things and i will give my number in a moment. they just don't work in the supreme court. perils in the press corps from reporting stories like this? >> i would say no, not really. journalistsvidual may, from time to time, offend individual justices of the right stories that the justices don't like, but guess what? those journalists still get to sit and watch a supreme court work. the loser parking privileges or
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anything like that. you don't really pay a price for it. >> that is one thing about the supreme court press corps, if you cover the white house and you really annoy the president and youre cut out .ources will disappear at the supreme court you have no sources to start with third the justices don't really talk to you they talk to some of us sometimes. we have lunch with the chief justice once a year, which is up from once every two years under so we are making progress, but the norm is that you don't talk to the justices so there really are no privileges that they can withdraw from you to punish you for a leak. and the dangerde
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of publishing a leak is if it is wrong and then you will embarrass yourself. >> i want to turn to amy. if you got a story like crawford's, would you run it on scotus blog? >> i think we probably would. if chance story came straight , if they had been working with jennifer years and we have been working with lyle for years and he says this is a legitimate story we would say yes. this is kind of what i do and will i'll does. -- lyle is the quintessential independent journalist. he has the right and power to write anything at all on the blogs that he wants and gets no real editorial oversight from me
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because i have such a relationship. it is very important because i practice in front of the supreme court that lyle not feel any constraint. if you wonder if lyle has any constraint, you should see his stories about my oral arguments which one would say is not going. unqualifiedly, if lyle had the story we would've run the story. the puzzle is if i have the ?tory, would we have run it the answer to that question is no. that is an interesting dilemma. with some decent regularity when the court was going to do things ahead of time as pete says. almost never is it the result of a consciously. there is not the culture of leaking at the supreme court. the costs are too high, the relationship of the press corps and the people inside the building are two things and thin.are -- are too
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we do almost no enterprise reporting at all. lyle doesn't like it. lyle likes to look at the reefs and listen to the oral arguments and write about them. it is what he does. in thes no interested underlying personalities machinations, he is a distinct type of reporter. it is very good for us because it almost never creates leaks. lyle is not out there trying to matter, hernalistic never gets interference on what it is he is going to write about. jeffrey toobin's latest book has a statement about his sources. the interviews are running not for attribution basis. i can use the information provided without quoting
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directly identifying the source. toy, how does he get access lyrics and justices? >> some justices will talk to book authors where they won't to a beat reporter. i think that is one advantage. law codes will also do it if their justice lets them or gets for -- or gives permission. the fact that it is "the new yorker" may be a fact. which isnother factor the woodward and bernstein factor which has to do with the fact that woodward and bernstein got all the students about watergate, but they weren't white house reporters, there
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were local beat reporters. sometimes you need to come in from the outside to get scoops like that. while he is a supreme court beat reporter is not there very often at all. he drops in for specific arguments. in a sense he is not a daily presence at the court. sometimes that gives you an advantage in gaining access to the justice. >> do think it has anything to do with the distance of time as you get two or three years down? people are more willing to talk? >> i think that helps, too. he has interviewed justices for some fairly real-time stories in the new yorker. sometimes the justices are not too happy about it. justices do feel the call of history to a degree.
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they do talk to scholars and authors about what has happened in the past. >> pete, any insight into the toobin/source relationship? >> i think it is because of the book. bob woodward was the first to do this with the brethren, which shocked the court about a lot of inside stuff about what happened there. this is still woodward standard operating agreement that he has in the booksces. he has written, his ground rules are that he will interview them can't use the material until the book comes out. when you approach a justice that way, remember, because it is a book, you are not going to be writing about a decision that hasn't come out yet. are you are writing about the past, help us understand that.
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one of the things he charts in the book you're talking about is the supreme court's very on whetherecision labor unions and corporations can use their own money as s toed to setting up pack support a political party or candidate. it was a so called citizens united decision. the question was whether a paid program on hillary clinton counted as an electioneering message. that was the original question of citizens united. but he wanted to know is, how did that turn into the citizens united decision, this huge thing
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that shifted the ground under campaign finance legislation. he wanted to know how did that work for the court in what were the ups and downs. even when you publish a book like that enough sources like that, you still hear from other justices who say, it was a very good look but i think jeff is wrong about this one point. in the main, it is because he is writing a book. >> supreme court reporter stay on the beat for a long time. lyle has been there for 55 years. amy, do you worry about him getting too close to the institution? >> think so. i think especially with lyle. lyle calls them as he sees them and he prides himself on being independent, not only of his editor and publisher, but also he's not somebody who's out interviewing sources in interviewing the justices. so i think that he probably has the .ame distance
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adam think he is changed at all over the years. i would say that his distance and attitude is the same one he had 50 years ago >> just to add to what amy said, part of it is that this is the advantage of justices ot talking to the press. they have little use for alking to the press. so i don't think we end up being -- drinking the cool aid quite as quickly. and buying into everything that
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that, you know, that particular lar justice or the court enerally does. to stay on longer and not compromise our -- >> my sense is that on both torks avoid capture by the institutions there will be a rotation. someone will stay on a beat for two or three years with limited exceptions, that question of capture is less prominent because there's nobody you're talking to to capture you. and the other side of the equation is that it's a complicated body to write about. it's very difficult to drop somebody into the supreme court and say have have at it. because the justices are writing in a language that's very different. and it takes little time, there are people who show up and do fabulously. but generally speaking it takes people a year or two to understand this institution, the rhetoric is so different.
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and so you need people with a large body of experience. i think that's what most institutions have concluded is that they aren't worried about people losing their aggressiveness because it's not that kind of beat to begin with. and the longer a person stays there the better they are at being able to explain these weird legal decision tots public. >> if i may hazard a guess here, because there have been lots of articles, scholarly articles written about this, is this question of whether we become beholden to the source and we lose our utility as independent challengers of what the institution is up to. that's, i think, a lot of what goes on about this. tom is right. number one, adam lit pac was on a -- who writes for the norning times, was talking about this phenomenon at a seminar earlier this year. he says you just get better the longer you stay on the supreme court beat because you
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understand the institution that much better, you stay on the supreme court law, and there's a reason people who cover the supreme court tend to stay there. but the other part is we could talk all day about whether the supreme court is political in the sense that it's -- it follows the election returns as has been notably said. but it's fundamentally not a political branch. these folks are appointed for life. it's not like the congress. it's not like an executive branch agency. this sort of day-to-day, push and pull, political appointee, who is in, who is out stuff that you want to try to insulate yourself. just it doesn't really apply at the supreme court. fundamentally the courts eitherly uphold the defense of argee act or it isn't. and you can look at the votes and what the justices say about why they did what they did.
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it's right there in front of you. and you can say where yass you might question the motives why they did something or didn't, it would help to have sources and be independent and question them, you can see what anten scalia said. and you can chal i think him on that because he is putting it right in front of you. that's one danger that doesn't really exist in the supreme court is becoming beholden to the institution in a way that defangs you. >> do the justices follow press coverage? >> yes. they do. they try to pretend like they don't. but we know that they read scotea's blog. i don't know how many watch nbc news or read what tony writes about them or read what the "new york times" writes about them. but yes of course they do. what is they care
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said in the press. they are human beings. the justices really are. and in washington you kind of have a sense that you get the president is used to having people say all kinds of horrible things about them. but the justices, the more recent ones have gone through the cruisible of the appointments process, which is horrible. people make up crap about you and lie and slander you and that sort of thing because that part has turned into a political process. but these people value their reputations. they grew up in a staid occupation. they're used to being praised, not marshly criticized. and now they are kind of asked in some small part of the world in the center of the universe, so people are writing about their big decisions. so you can believe that they are very aware of what is written about them and take it quite personally. >> tony.
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>> justice thomas has famously said that he doesn't read any newspaper except the dallas cowboys fan newspaper. and his wife usually brings him up to date about what is being written about him. but the rest of them do for sure. as has been said. and once in a while i'll get a call from the public information office -- this is how it's done. you get a call from the public information office and the public information officer said you wrote such and such the other day. are you really sure that's correct? reprimanded. and i know it's coming from upstairs, from the justices. and sometimes you make a change, sometimes you don't. but that is about the only -- i've never gotten a call directly from a justice saying,
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that was a terrible thing you wrote. you kind of get it indirectly. >> unless they have books to sell, justices rarely give interviews. >> yet adam was able to interview justice ginsberg a couple weeks ago. >> so has everyone in the america. justice ginsburg has a message. she'll take it anywhere. she'll come to your house. if you are going to have a garden party she'll come there. she is not leaving. she wants everyone to know she is staying on the supreme court. so she has been doing interviews like mad. >> why aren't there more super views like this? >> [inaudible] >> yes. >> go ahead, tony. >> it's because they don't have a message like that to get out. if they did, they would. know some justices who that if they stick their neck
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out and are interviewed they're going to get some question that is they don't really want to answer. that's another factor. i was able to once interview justice alito because i knew he was a philadelphia fillies fan d the fillies had just won the world series. but they had done well. so i said could i interview justice alito about the phillies? and the public information officers said he won't want to talk about i. the next thing i knew i got a call from justice alito saying be here tomorrow. and we talked about the phillies. and i said, while i have you -- and i was able to make a little bit of news. but that actually hasn't happened lately. i think justice alito has joined the crowd of justices who don't talk. >> for one thing, they don't need to. they have lifetime appointments and they don't need to renew
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them through us. they do make themselves accessible. they don't do interviews very often wheptexen theft books out. justice societya my or has done every show except possibly the food network with her extraordinary book out called my beloved world. justice scalia, i interviewed him last year when his book came out about supreme court advocacy and how the supreme court should decide cases. his sort of judicial philosophy. but they do a lot of -- they appear before bar groups and the aclu will put on something. so we often can question them in those forums. but they don't do interviews very often because they don't want to and they don't have to. >> are the justices less accessible today than in earlier eras? >> i would say no. i would say more so. >> oh, yeah.
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partly because a lot of them are writing books. but i think there is a general -- generally they're more out there, more talking to law school audiences, and they always did that but they used to be able to come and go without being noticed hardly. now, if a justice is speaking to a law school audience, you're going to read about it in twitter feeds or you'll read about it in the local media. but i think generally they are more accessible. i think they generally take the cue from the chief justice on that. rehnquist didn't like it, burger didn't like it. roberts i think is a little the public eye. although he has not been giving interviews lately, either. so it's just gradual.
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i kept thinking that the younger justices came on to the court who grew up in the television age they would be more willing to -- and eager to embrace that medium, which is not exactly a new medium any more, but that generally has not been the case. >> and i think one thing has to be said about c-span is that a lot of justices can be seen in their appearances at law schools and other forums like that through c-span. >> fred graham, who covered the supreme court for "new york times" and cbs from 19 of 5 to 1987 said only the vatican and c.i.a. were less interested in press coverage than the supreme court. is this still true? >> well, that may be true. but i've always had the sense that the vatican and the c.i.a. are very interested in their press coverage. the vatican has a press office. the pope tweets. so does the c.i.a. have a press
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office. and maybe times have changed since the days when fred was covering during the times when he was covering it for cbs or for the "new york times." i think again because it's not a political institution and the justices are appointed for life, the day-to-day up and down sort of public institution credibility of the court is not something that they follow that closely but they do care about it. i just are aware and think -- i just disagree with that now. i think that's no longer the case. >> tom. >> one thing that akin to pete's point is the court has no actual power other than its power to persuade. and one consequence of that is that there is great value to them in their oracle-like
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standing in our culture. and that is the supreme court said in bush versus gore that the recount is done. now, that ruling in a lot of cultures in a lot of years would have resulted in riots. but in the united states it was simply accepted. and i think on some level, despite the interest in, say, books or whatever, the justices recognize that in personalizing the court to themselves, in making it more about justice scalia over here and justice ginsburg over there they detract from the sense in the nation that they are a group that objectively articulates the law. and so i do think they like their privacy on some level, that's a piece of the puzzle here, and that is they really like the fact that they can go around and be around in the community without having to have the overwhelming security that a lot of senior government officials have to have. but the institution itself depends on the idea that it is not just the coincidence of
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what nine people happened to be on the supreme court that determines the meaning of the constitution. >> let's get into the nitty-gritty of why you don't have press credentials at the supreme court. the only way that lyle gets into the courtroom is through his relationship with wbr. could you describe your efforts to get press credentials and why that apparently has been unsuccessful? >> sure. and this is another instance in which the court itself is relatively opaque. they are -- they have been thinking about this for a while. the history of this is that the blog originally asks to be cre den shled in the supreme court. we were told that we needed to have a senate press credential. the senate would not credential us because we were lawyers. and it took us a while to convince them that we weren't the kind of lawyers that were trying to lobby the senate. i think, to be perfectly
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honest, the tipping point for us getting credential was the pea boddy. it became unsustainable, the senate press gallery, which is essentially a private organization to which the credentialing decision was turned over took us more seriously and -- they credentialed lyle. lyle is a reporter. we then we want back to the court and we applied and as i mentioned just in passing last time the court, which had had this policy that says if you're credentialed by the senate, then said we're reevaluating our practices and we will be back in touch with you. i did check in with them recently and they said they were still working on that process. i don't think that they are going -- they're trying to write a policy that excludes us in any way. i think that the court -- it's hard to speak of the court as a whole but the public
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information office really has gone out of its way to accommodate us. for example, in allowing lyle to have a place in the press room and trying to deal with us in that way, i think that the court, like a lot of institutions, places in the government, are trying to figure out what to do with new media. what does it mean if you credential us? does that mean someone else can create a blogger account and come and get a credential at the supreme court? that doesn't seem right. so how is it that you draw the line? there's also the fact that i'm the publisher. amy is no longer in the law firm so we've been trying to move the blog more and more into independence. i'm the publisher and i'm in the law firm. what do you do about that? somebody who is practicing in front of the supreme court, and do you need to adopt a special rule there? the truth of the matter is that the world doesn't turn on the answer to this question because the court doesn't create obstacles to us covering the supreme court. this would be -- if this was a
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question of getting a white house press credential so that we couldn't physically get into the white house that would be one thing. but for us, what is it that the supreme court press corps gets? they get preferential seating, they get guaranteed access if they have a hard pass, they get conference lists of the case thars going to be considered at different conference that you can get that through the supreme court's docket. it's more a question of -- and i do think it is a significant question in this sense, and that is the supreme court is the signaler to other institutions. and its decision about whether blogs deserve recognition is for that reason significant. so i think they're studying it very carefully. it also has first amendment implications. the court is aware that if we are eventually denied a credential we will sue. >> the blog versus --
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>> right. i said somewhat facetiously that i like the idea of a law suit. but we're committed to the principle that we deserve a credential. we are not committed to rushing their decision. and they'll make whatever decision they think is right. but they face challenges in articulating a rule that distinguishes us from other people. i don't genuinely think that there's a lot of debate that we belong on the right side of the line. but the question of where to draw the line, they have to create a policy. so it is a challenge for them to draw a line that's sensible. we can get many thousands of visits from inside the building every day. they use us -- the chief justice wrote two things that were published on the blog this year not that he was in any way giving us special conversation but they happened to be things he was writing about. they were simple tributes but it's clear that it's not in a disfared situation in the
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court. so it will be fascinating to see how it is they work through this. and it's just not an institution that moves very quickly. that's one of its difficulties but also one of its great features. the supreme court doesn't change a lot. and that's all to the good sometimes. >> i don't think, these guy whose are in institution whose have credentials. >> the only thing i would add to that number one the supreme court has a different policy about press passes than others. i don't know how many passes nbc has in the senate radio and tv gallery. i would guess maybe 200. all of our crews have them, the sound people, the camera people, the technicians our producers, our correspondents. anybody who ever goes and covers a congressional hearing gets a congressional press credential. any news organization that covers the supreme court gets one.
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there's one hard pass for nbc news and i have it. and there aren't going to be any more for nbc news. so it's different. they really restrict the number of so-called hard passes that allow us easy access to the court in essence guarantee us a seat for oral argument which is tremendously important for us because there's no other way to get that if you're not in the courtroom. you can't listen to the audio until friday. you can't get the transcript until late in the day. there's just no substitute for being there. so that's valuable to us. now, that doesn't mean that somebody from the atlantic constitution can't come up and hear an argument, because they do give out good for one day only paper passes as well. but i'm just saying, number one, the court has sort of a different policy about press passes. they tend to restrict it. and the second thing is i think tom is absolutely right. they're trying to say so if we give it to them, how do we say that they're different than every other, jason in the
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basement in his underwear who wants a press pass? what they'll have to say is somebody who commits full-time resources to regularly corg the court and so on. they're going to have to draw up the rules. >> the court does not allow reporters to use electronic devices in the courtroom. we have in this sketch ve individuals hearing the decision. they can't communicate to their editors, they can't post or anything like that. and other journalists are in the press room one floor below able to receive the opinion as it's announced and file at that point. setting aside the issue of cameras in the courtroom, what is the outlook for reporters using electronic devices in the courtroom? will there be tweeting from the courtroom? >> i really can't conjures that
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up in my mind. so many courts -- lower courts are allowing it and it's turned into -- even some federal courts allow it tweeting from inside. but i just don't see it at the supreme court. there is this great sense of they m and history that think that would mess things up. and i just -- >> is that against the law? >> what? >> to tweet? i mean -- because i'm really thinking that there should be a -- >> no. but if you did it you would lose your press pass. >> but just a citizen could be in there. >> no. you can't bring in electronic devices. >> but if they sneak it in? >> they would probably be asked to leave just as in any federal courtroom where those devices are not allowed. >> so there's an opportunity
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>> to be thrown out of the court. >> they do very careful searches of people going in. i once accidentally very recently took my phone in my bag into the court just completely accidentally, and the police corps missed it. and i could have gotten a call while i was arguing in front of the supreme court and then i would have plenty of time to talk about these issues. but yeah, i cannot -- >> they physically search. like if a woman brings a hand bag into the supreme court courtroom, they physically search it and they will go in each and every pocket. sometimes they will open up your lipstick. >> there's a lot of miniaturization. i think it could be done. and the more i hear this, the more i'm hoping that it is done soon. all because -- what you're
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saying that there's a tradition based on print culture of maintaining a mystique that forbids any engagement of personality of the people who are making judgments that affect the lives and well being of citizens of the country, of major institutions, that it's sack sambingt against any personal communication and the supreme court is complicit in that, it's fine by you, but we have a new technology for that would rethink what is the story. and i don't think it's going to stand. i'm not saying any of you should behave differently. but i'm saying the profession as a whole is going to find out what they do with their spare time, what their wives are doing, that knowledge of who is pressuring whom, there are people in washington who know that and bob wood wad gets all that information because people
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don't want to get -- they don't want their colleagues to have defined the story. they want to define the story. so they'll be spilling their guts once it starts. so i'm making a prediction here that the force of a more pervasive media environment ll overwhelm this set of really arcane prohibition. >> just to give you one sense of the pace of the prohibition, it was a major development when about five or six years ago the supreme court allowed the audience to bring in a piece of pape tore take notes. a piece of paper. >> just for the sake -- because we are a university and we like the free exchange of ideas, let me without telling you what my own view is offer a contrary iew. the late great guiding genius
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behind 60 minutes who was a pioneering producer at cbs news used to say, you know, we can get cameras to the moon. do we really have to have cameras everywhere? is that -- does everything benefit from television coverage? when he was talking about -- i was interviewing him about cameras in the courts and cameras on the supreme court. and he said, you know, this is a guy who practically invented television news was one of the pioneers said, maybe it's not so bad that we don't have cameras everywhere. the contrary view to what you just said would be this, that a supreme court argument or a supreme court decision benefits from some thought. that maybe doesn't come out in 160 characters within five seconds of it happening. and that there is -- whether it
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is a good thing or not to allow tweeting from the courts from the supreme court, there's something to be said about a reflective moment. what does it mean? what is the significance of it? before you speak. now, as you say, it may be that we're just -- our society has long since made the decision that those things are not as valuable as intan tain yuss access. but again, i have complicated views, frankly, about television coverage and the supreme court because i have sat there so often and thought, oh my heavens, if my fellow citizens could just see this. it is so impressive. it is so inspiring to be -- you would be so proud of this institution of the supreme court if you could just see it for yourself and realize how really good oral argument is. now, not some of the tax cases maybe. >> not tommy. >> no.
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no. no. but on the other hand, you know, it presents challenges to me as a television correspondent not to have it and it would present different challenges if i did. but the point is i have often thought -- and the justices are concerned about it for a lot of really good and some not so good reasons. i it is what it is and think you have put your finger on the basic point is to some extent the supreme court is afraid of this change. and very resistant. worried about -- >> either they have the mystique to declare george bush president despite the count in lorida, or they don't, and there might be riots in the street. of course the next question is perhaps they might decide it differently. v. ell let's not use bush
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gore then. let's use brown v. board of education. >> i'm not saying it's good or bad. just the pressure is there. it's not just the pressure of digital media is not just the immediate and the short but it's the pressure to -- it's a wonderful pressure which is what i think is the real hievement of scotus blog, is its data base, is it's following a story over a period of time. >> although the question about -- >> talking about a case as if you might come back to the subject some other time. >> but the question about electronic devices in the court is about instantaneous. >> but i'm saying there is a radical shift here of redefining the story. journalism is about teg the story in a most authoritative way. if you get a new media forum,
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you get to think what is the story? so it's interesting that these questions have arose. maybe we should be covering other things if we had more access. and then the other question is, how do you honor the complexity of the part of the procedural part of the court, which is the focus? i mean, and that's enough. i'm not saying you should all go. i'm just calling attention to the two ways in which changing the medium changes what we take for granted about what is the story. >> if you had a press pass and you were in the the press room one floor below the courtroom, the audio is piped in and you could tweet from there. >> no. >> you could not? >> no. you can't tweet from the press room. >> but you could file on the internet. correct? >> no. now, i've not done this because
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i usually grab the opinion and run outside. but my sense is, there is an overflow room for one of the arguments but i don't know that you had your electronic devices in there. >> i think we're talking about slightly dirnt rooms. >> the g-7 or whatever it is, the room where the actual opinions are handed out. >> to the press. >> to the press, not to the public. no electronic devices are allowed in there. but you can take the opinion, go out of that room -- >> but he's talking about listening to the audio. >>while you're listening to the audio you can't be in that room with electronic devices so you can't in real time -- there is no place in the supreme court where you can receive and distribute information about what is being said in the courtroom except that i suppose you could stand outside the door to g-37 and hear the ambient sound, in which case
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they would change the rule and close the door probably. they do not want real-time distribution of that piece of information. they will make the audio available at the end. >> what they're afraid of is somehow the audio of the -- what's happening in the courtroom getting out, being broadcast or being put on the internet. they don't want that. and even if they for bade that -- because the institutional press is there and they would get in trouble and lose their hard pass. but they are interested in making sure people have information about what's going on, on the supreme court. they do make the audio available at the end of the week, there's a same-day transcript. but they are not interested in turning themselves into an institution that is really in real time breaking news that is personalized about them. they want to be separate and distinct and different because
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of the -- and they have all these rules about decorum because it is actually very important to their credibility and to the strength of their decisions that they have this essentially moral force. >> well, one other thing at play here that i should bring up. the court -- you can go on line and get the transcript of oral argument. what you cannot get on line is the transcript of what's called the bench announcement. when the justices come and announce their opinions. now, in the very old days they used to read the opinion all the way through. thank god they don't do that any more. but they sum rise their opinions. and sometimes if they are strong feelings the dissenters will sum rise their dissent. now we've asked the court can we have that audio, too, because it would be great for me because there's often a lot of passion in the way a justice will sum rise his or her opinions. and there's jauve times even more passion in the way a dissenter will sum rise the
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dissent. i would love to get that into my pieces and we've asked for that. and we've been told no. and here's the reason. he explanation we get is this. the opinion itself that let's say the five justices sign on to striking down the defense of marriage act, they've all read the opinion, they're all happy with it, they all have gone back and forth with it, they know what it's going to say, their names are on it, and they agree with it. they have no idea if justice kennedy, for example, is writing the doma decision, the other four justices who signed on to that opinion have no idea what he is going to say, how he is going to explain it what emphasis he is going to put obcertain points. they've not signed on to that so they don't want that out there as though he is speaking for the court. the only thing that is speaking for the court is the opinion itself. now, that's the reason they give us for why we can't get the audio of the decision
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handing down process. i understand that point of view. but i would still love to have it. >> there's two things about that that don't make any sense. number one it's not off the record. they say it in the courtroom. it is written down by people. and then repeated. nina famously has in the -- here's scalia did this and that sort of thing. it actually happened. and it was reported. but the court did not permit audio of it. and then certainly doesn't permit video of it. and then it actually does release the audio. it releases the audio at the end of the term and it releases of the oral argument at the end of the week. >> now you can't get the hand on the audio. >> yes, you can. >> it's on the internet. it's available on the internet. >> and the stuff that goes to the archive? but they said it doesn't. >> oh, no. >> it gets plucked off.
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september. >> the court releases it at the end of the term. >> not during the tempt >> not during the tempt but it is out there. it's actual information. but one should be honest i think that while there are -- is a slight technical advantage to the court of not releasing the audio until the end of the week, to prepare the files et cetera, in a very organized way, one principle consequence is that they are releasing the audio but just late enough so that it is not useful in stories on reporting by the court. >> there's no question about that. and remember, that this whole releasing the audio jazz started with high profile cases including bush v. gore where so many of us including c-span asked the court for access to the audio and they did release it. they did it during the health care arguments as well. they've done it maybe ten times the last years. and when we press for it. and they don't do that any
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more. >> they do occasionally. >> they're probably not going to do it. >> on their own motion. >> the rule used to be a c-span rule, when c-span thought it was so important they changed that. >> but the amount of -- we did it this year during the voting rights act for example. but they're doing it a lot less than they used to. and you're absolutely right. what they told us is we're going to go you one better. we're going to release all the audio and court experts and academics can hear it. but you're right they do it when they've opened the valve and released all the news value and it's completely useless. then it goes on the web. >> i just wanted to say that the net result of all of these arcane little customs and traditions and rules is -- and this goes to janet's point, is that the court totally evades one of the most important
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modern-day forms of accountability, which is broadcast access. and in a sense i think you're saying that we've sort of let them get away with it. i guess we have. i mean, i've only been advocating cameras in the court for 30 years. but you know it's -- unfortunately, it's left up to them. congress doesn't have the will or the gumption to force it on them. >> there's a question whether it has the ability to do it, too. >> i think there's no question it has the able. but anyway. >> tell them to walk in there tomorrow with a little pin camera and a microphone. it's the will that's missing. >> if only it were that simple. >> i have said that perhaps on the last day that i cover the supreme court, which is a date yet unknown, and not for a long
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time, that i will bring in a plastic camera and a pen tape recorder and then they'll carry me out. >> another illustration. i gave the brief illustration of the notepad. i believe that there are only one or two known photographs in the entire history of photography of the supreme court actually in session, where speem snuck in cameras. it is that both the stricture of the rules the way that they enforce the rule, and our willingness to accommodate it. i don't know if we want to talk about cameras in the courtroom but i do think it's fascinating the way we're a visual culture and the way the supreme court prevents that. and also the question of what would happen to the video. and what their concern is, how the video would be used, that medication it such a red line that cannot be crossed. >> i'll tell you what they say. one objection they have is that as the supreme court goes, so
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go the lower courts. they don't want to force all the federal courts to allow cameras in the courtroom, which would be not only the other pal lats courts like the supreme court is but also the trial courts, which raise a lot of different issues about cameras in the court. that's thing one. thing two is now we get into lots of different explanations depending on the justices you talk to. i truly believe that one motive is despite the fact that they do a lot more interviews now and write books, they just don't want to be hassled in the salad bar. they would like to issue complicated decisions and not have to be constaptly answering questions about them from people who go up to them on the street. they think that it would change the nature of oral argument. they think that it would affect the performance of arguing counsel. i find that hard to believe myself if i'm a lawyer for a case in which hundreds of
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millions of dollars are at stake i'm thinking of persuading these nine justices, not how it's going to play on c-span. they also think -- and justice brier said this himself in the laves time that the members of congress go up and argue for their budgets before congress. he said i worry that i would change how i act. i would worry about how my questions are going to play on television later and i might sensor myself and i might not ask all the questions i was going to ask. and finally justice scalia's favorite objection is all we're going to see on television is snippets. and that's true. i would point out that all you see in the "new york times" are snippets. they just happened to be in print and have quotetation marks around them. but guess what the "new york times" doesn't publish the transcript of every oral argument. they write stories about them which feature snippets. i really think that what they're concerned about is sitting down at home and watching john stewart pull
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certain isolated parts out of supreme court arguments and making fun of them. i think they truly are worried about that. >> well, after the oral arguments in the health care case the republicans put out an ad featuring a solicitor general stumbling. do you think this affects the at tudes among members of the court? i know they were offend bid that. they thought it was terribly unfair. and i think it put a damper over getting one of the many reason wes don't get a lot more audio than we do. >> and that was my first reaction when i heard that ad that just set the cause of cameras in the courtroom back ten years. >> i don't understand this policy on releasing same-day audio because from 2000-2009 they did it 21 times. then they said we're not going to do it any more. we're going to release all audio at the end of the week. and then they made two exeppings recently for the
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health care case and defense of marriage, same sex marriage case. why are they -- if they have to policy -- why back this, oh, every now and then audio? lease same-day why not for every case? >> i think we should. i don't see any harm. when you see it on c-span. they do it very carefully. they play it and very faithfully make it available. what the chief louisiana told us is that he doesn't want to be in the position of saying that one case is more important than another. that he didn't want to be picking and choosing which cases he would give the benediction of audio release to. so he didn't make that gesture by the way when he said it i just want to be very clear about that but that's their claim. >> linda greenhouse who began covering the court in 1978
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described the leisurely pace that existed at that time. where she would get an opinion and then go out to lunch and study it and then file something early in the evening for the next day's papers. with the web and cable tv today, there's an enormous and pernicious need for speed. and now reporters are also filing on multiple platforms. for example, jeff posted video on the "wall street journal".com, pete you do things on the internet as well. how have these communication technologies changed the coverage of the court? >> tremendously. luckily, some of us have the luxury of working at places that don't put high premium on being first with a tweet. and i'm lucky to be one of those. and but still we have to get something up on line if it's a
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big -- or, if it's a major case, as soon as possible. and one of my -- one of the things i always tell young supreme court new supreme court reporters is whatever you do, don't forget to read the opinion. and you would think that's sort of obvious but it's so easy to now you look at the syllabus then you -- i usually go to the dissent because the dissent often tells you what's really important in the majority and then you go to the majority. and you can kind of get a good idea if you just do it on the fly. but you really miss stuff if you don't sit down and read -- close the door and read the whole thing. >> so linda tells me that her predecessor at the "new york times" had an even more leisurely and delibtive thing. he would go to the court, get the opinions, go home, open a bottle of wine, you know, sit,
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have a -- call a few experts, think about it and then write the story. so yes times have changed. i can't sit in the supreme court room and hear the opinions announced any more on big cases. i used to be able to do that before there was msnbc, the cable network. i can't do that any more. now with the big cases i have to be standing outside or standing in the press room grabbing the opinion and reading it as i run outside. or this last time, standing outside, so that -- you know, there are these paralevel universes. so i'm out there in this intensely competitive hurry up, where seconds count in terms of bragging rights who got it first, and my colleague from national public radio is inside and she won't know for 20 more minutes what the supreme court has done with the health care case or -- on the last day of the term when the big ones come out they don't always announce
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the big one first. they do it in reverse order of seniority so the least junior justice goes and finally the most senior one who is most likely to have the bigie. for the health care case it took them a long time to finally get there so when the reporters who were in the room came out we had been hammering this thing out for almost an hour. >> could i draw one highly technical distinction. there will be a moment in time where a justice in the courtroom will start announcing the opinion. and at that moment downstairs the court will hand out the opinion. so the people downstairs can have physically skim through the whole thing where yass in the courtroom it may take 20 minutes in an extreme example like health care before chief justice roberts gets to the punch line of who won or lost. so there's a distinct advantage to being in the room, and that is you're hearing the explanation that they're trying to make but there's a massive
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disadvantage too because they don't hand out the opinion in the courtroom. >> this actually played out very interestingly in the same sex marriage cases because as pete said they announced in order of reverse seniority. so justice kennedy announced the decision in domea. justice scalia reads from his dissent. justice alito and roberts also have the sense that they don't read from the bench, in which they indicate that the court reporter is going to rule on the standing issue on the per can i case. >> california case. >> they're not going to decide whether or not prop 8 is actually unconstitutional. so everyone who is outside the courtroom knows this almost immediately. meanwhile, inside the courtroom justice scalia has to first announce his decision in an obscure criminal case so the people in the courtroom don't actually get to perry for probably a half an hour. >> so it hasn't changed -- to
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some exat the present time it hasn't changed what is done. this is has been what the wire services live and die on ever since they started covering the supreme court. just before i started covering the court the way it worked was they literally hand it had decisions -- handed the decisions down from the bench. a copy went down. you were from upi or -- united press, international news service and ap, someone would take the decision up in the courtroom, roll it up, stick it in a numetic tube and it would go one floor down the bench where a reporter was waiting with a thing that punches paper tape. so this rush to get the supreme court decisions out quickly has always been the case but only for a very few. now it's for everybody. now anybody who covers the supreme court for a mainstream news organization has to quickly get the decision out
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and then through the day you keep updating and moving your story and fresher, more deeper insights. but when i first started covering the supreme court we didn't have a cable network. that wasn't an issue for us unless it was a huge decision where we were going to interrupt the network. and there just weren't that many of those mage deer sigses. >> to the members of the audience we have microphones here if anyone would like to step up and ask questions. >> i've just been scribbling all morning. i'm happy to be here. i'm not a student or affiliated. i'm the public that you speak of that you're always inviting to these things. and i've just been glued to you all for affordable care. and when you speak of doing a public good it makes me feel like more of a citizen to be getting it and why. and you're so gracious. can i go back to the earlier
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panel real quick for one question? which was just you spoke of comments. but -- and you like to avoid them but you were so engaging the day leading up to it you were very accessible in terms of answering questions and how are you doing this. my question is real quick. how people are in the press corps? you say there's only so many hard passes. >> so regulars it's about 40 i'm guessing. >> i would have guessed less but no more than that for sure. it's a small group. when you think congress is covered like thousands and the white house also. >> and there are a number of people who wear multiple hats. pete does this unbelieveably effectively to do the department of justice and you can be sent off to boston all these sorts of things. but we're all awire of the strains that journalistic institutions and the media are under and the need to have
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fewer people cover more things. and technology can help with that. but the number of people in the press room who are devoted supreme court correspondents has gone down materially. the core people that you rely on, the people that you've known -- like these guys, like jeff who was mentioned, the ap reporters, those institutions have remained committed to it. but there are lots of regional papers that have completely ended their coverage. some of the television networks have retrenched considerably. nbc being really the only exception for broadcast networks. so it's a smaller and smaller group. >> when i read something on she's credentials elsewhere? >> no. >> is there some distinction? >> she's in the courtroom every day. >> i just wondered.
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>> i believe she has one of the things like was talking about where you can cover individual cases. >> she doesn't get to sit in the first two rows. it's so silly. but -- because she doesn't have a hard pass. >> so it's not that they're making some distinction between an online magazine and a blog. just no one who writes for the internet gets cre den shled? >> i think they are. >> for the senate. >> they're credentialed. so it's a recognized publicication and she can get a day pass but she does not have a hard pass. >> ok. thank you. >> can i ask a really trashy question? what happens like in the press corps in terms of accessibility when someone writes something like something about jenny thomas, when that stuff gets written about do you find that your press -- how they talk to you? because that stuff really ints
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me. >> she's fair game. she's a public figure in every way. >> one final question for janet. what is the success of the blog? tell us about the future of journalism. >> oh. -- think it's very helpful it's a very hopeful message. i think that it's clear that we're getting the domesticating technologies that are helping us to -- helping people in the collective process of redefining what journalism is. and that i think the way that blog sum rises cases, that -- and you know what i'm saying? the blog is not the most salient.
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i'm not saying -- what you think about as blogging isn't excellent. it is. but there's -- i think there's contribution here that is in reredefining what the story telling is. and it's redefining it in the moment both -- and in multim time frames. so it's what you can do immediately that's adding to the pressure that we want more information immediately, it's who you include in the conversation. i've heard other people say how wonderful it was to hear the explanations during the waits and how welcoming the blog was to the nubeie people who are mystified by these arcane rilttulls. and then there's the longer story which is it's taking what is a petition, what is a
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document, what is the sert process, what is -- how do you follow one case? i think it was great to set up the case as a separate page. so there's information organizations process here that is a model. when people have forgotten the word blog there will still -- it will have contributed to this longer term effort of making the necessary civil as tice of journalism commune cative and expressive, as informative as it can possibly be to the widest amount of people. i think it's a wonderful case study of that. >> our time has expired. please join me in a round of pplause for our panel.
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[applause] >> it was like shock and awe. i saw it, that look that he had on his face and i could close my eyes and i could see him on the stretcher right now. i could see him putting his hand up, i could see his ice. i can close my eyes and see it. and i'll never forget that first case, that sort of bringing me to reality of what was going on here. and after he got into the tent, there was this initial sort of like triage, he gets to there, we get the report, we see him and he goes into the tent and everyone starts to work, the other team starts to work. we got pulled in myself and actually my colleague that
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wrote the forward, we both got pulled in because the other team wanted us to begin right away. they didn't want us to be bye standers. they said you have to get involved right away. and once they did that and they pulled us in, it was like a jolt. there was like, wake up. now you have to act. you have to be a doctor. you have to be a surgeon. you have to be a care provider. you have to dismiss your emotion, you have to tuck that away, what you are feeling, and just work now. you have one objective. you have to save this guy's life. you have to stop the bleeding, you have to get him back home to his family. >> in his first book, he uses his own military experiences to write about physicians working in afghanistan. more sunday night at 8:00 on -span's q&a.
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>> coming up live on c-span, "washington journal." then at 10:00 a.m. eastern the c-span original series, first ladies, with a profile of eleanor roosevelt. at noon today, supreme court justice kagen speaking at the university of alabama law school. a look at the tomple proposal ffered by chairman baucus. the a conversation about
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expanding u.s. prison population and mandatory minimum sentences. we'll be joined by mark mauer of the sentencing project. also kevin prineo, author of host: white house officials say they are on track to have the health care website handle 50,000 simultaneous users. with theterview financial times, i ran the's president says any nuclear pact will not involve the dismantling of iran's nuclear facilities. the interim agreement could test the two countries. for is "washington journal" november 30, 2013. our first 45


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