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FTC Delivers Petition to Supreme Court from Citizens from 50 States Calling on the Justices to Release Same-Day Audio in Upcoming Cases

With the U.S. Supreme Court set to hear two of its most closely watched cases of the term on Jan. 18, Americans from all 50 states are indicating their support, via this Fix the Court petition, for the justices to release oral argument audio later that very day, as opposed to the typical Friday afternoon release.

One of the Jan. 18 cases, Lee v. Tam, concerns whether offensive-sounding words or phrases – in this case, an all-Asian rock band that calls itself “The Slants” – may be trademarked; the other, Ashcroft v. Abbasi, comprises three consolidated cases that look at whether government officials may be held personally liable for certain post-Sept. 11 detention decisions.

The justices have often said that oral argument is but a small portion of what they consider when deciding a case, but given that it’s also one of only two opportunities per suit (the other being an opinion announcement) in which members of the public, no matter where they live, may hear directly from the justices, Fix the Court and its petition signers “believe that should happen at the soonest available moment.” That same-day transcripts are not always accurate only adds to Fix the Court’s argument.

“Less than eight hours after we put the petition online, citizens from every state had signed their names – 1,000 in all – saying that they care about the issues presented in these cases and deserve to hear directly from the justices on argument day,” FTC executive director Gabe Roth said.

“In terms of why the justices have been so reluctant in the last couple of years to release same-day audio, I think it has more to do with the coming changes to the court than anything else,” Roth added. “A new court is formed each time a new justice arrives, so think of what three or four new justices in quick succession would do to the court. Uncertainty yields retrenchment. They have no idea who or what is coming, so they are retreating to a proverbial – and antiquated – corner.”

It has been more than 20 months since the court allowed a same-day audio release for oral argument – April 28, 2015, in Obergefell v. Hodges being the last time – though that’s not counting the first argument of last term,OBB Personenverkehr v. Sachs, for which the court accidentally uploaded audio but within minutes took it down without comment.

As Fix the Court has noted in previous reports, the Supreme Court is severely lacking in transparency when compared to most state and foreign courts of last resort. Same-day audio is released in all but three federal courts of appeals – the others, besides SCOTUS, being the Denver-based 10th Circuit and the Atlanta-based 11th Circuit, though the 11th Circuit has indicated it will being posting same-day audio later this year. No negative consequences from same-day audio have been reported in any of the federal appeals courts.

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