A federal judge, in an unusual public criticism of the Supreme Court, says that it should not limit the audience for oral argument to news reporters and the handful of spectators admitted to the court's small chamber.
In important cases such as that of Allan P. Bakke, the argument should be taped for radio and television use, Judge Jack B. Weinstein of Brooklyn, N.Y., said in a recent phone interview.
"At the very least, there should be closed-circuit television, so people don't have to wait out in the street and be deprived of the right to see the court in action," Weinstein said.
Saying he was "shocked" at seeing "those nice young people" turned away from the Bakke argument, the judge added, "The argument . . . could have been shown in a government auditorium or in the spacious halls of the Supreme Court itself."
In the widely publicized Bakke case, which centers on the legality of a special admissions program for minorities at the University of California Medical School at Davis, the justices heard arguments from 10 a.m. to noon on Oct. 12. A crowd consisting mostly of college students who wanted to hear a 3-minute segment had begun to form at 9 o'clock the night before. Court police admitted about 250. They turned away more than 200.
A reporter asked Weinstein why, in his opinion, the court refuses to let arguments be carried on radio and television.
"Because it hasn't been done in the past," he said.
In Atlanta, the president of the American Bar Association agreed. "That's about as good an answer as any you could get, I suspect," ABA President William B. Spann Jr. told a reporter. "We are creatures of custom, we lawyers."
Justice William J. Brennan Jr. opened the door to more criticism last week, when the Supreme Court heard arguments about whether commercial phonograph records and cassettes could be made of White House conversation taped by Richard M. Nixon. The tapes were admitted into evidence in the 1974 Watergate cover-up trial and were heard in full or in part by the jurors and about 1,300 trial spectators.
Brennan asked a lawyer for the former President whether his objection to general release of the Nixon tapes implied a limit on the justices' power to release tapes of oral arguments in the Supreme Court.
The lawyer denied any such implication. Any in reply to another question by the justice, NBC attorney Floyd Abrams said the court dissemination of its oral arguments than a trial judge has to limit public use of an exhibit admitted in evidence. Chief Justice Warren E. Burger pronounced the authority to be not merely more, but "complete, final. . ."
Later, replying to a question by Justice William H. Rehnquist, Abrams said, "I think there is a strong case for making public this very proceeding."
Brennan returned to the issue during Edward Bennett William's argument for Warner Communications, Inc., with a question about distinguishing between possible public availability of trial evidence and argument in the federal appellate courts - the 11 circuit tribunals and the Supreme Court.
Williams said that none of the appellate courts has a rule permitting broadcast of oral argument. He termed that "wrong," saying the public "should have a right" to hear the instant argument.
"There's a concurrent right to copy," he said.
Spann, in the interview with the ABA president, said he saw "a tremendous advantage and virtually no disadvantage" in allowing oral argument in appellate courts to be broadcast and telecast.
He recalled that he supported Supreme Court of Georgia when it announced in February that it would join five other states in allowing oral argument to be telecast.
At the U.S. Supreme Court, press officer Barrett E. McGurn said the chief justice would have no comment on the Weinstein and Spann remarks.
At least to Weinstein's knowledge, he is the first U.S. District Court judge to urge taping of Supreme Court arguments. Like the ABA's Spann, he urges the same thing for appeals courts.
For example, he said, New Yorkers should have had a chance to hear arguments in the Second U.S. Circuit Court of Appeals about whether the supersonic Concorde should be allowed to land at Kennedy International Airport.
Referring mainly to the Bakke case, Weinstein said:
"It would be helpful for the public which will be affected by these cases to know what the complex arguments and considerations are, and to see and hear the process by which these vital decisions are made.
"In the long run, in a democracy such as ours, the public must believe that court holdings and the legal process are fair and sound, or the decisions will be overturned by legislation, constitutional amendment or social resistance.
"The level of legal debate and the quality of our Supreme and appellate courts are so high that people cannot help but be impressed by our American system of justice. American democracy and American law are great contributions to civilization. We should publicize them, not make them difficult to observe."
Weinstein, who was a Columbia University law professor when then President Johnson nominated him to the bench in 1967, set out some of the ideas in a speech last spring and adapted them for an article - "Let the People Observe Their Courts" - in the October issue of Judicature magazine.
"At the appellate and motion levels there seems to be no reason why live or taped coverage should be prohibited," Weinstein and co-author Diane L. Zimmerman, an assistant law professor at New York University, wrote in the article.
"Would it not have been fascinating to both the public and law students, for example, had the arguments before the Supreme Court on abortion and capital punishment been recorded for TV and radio? The public debate on the issues would have been conducted on a much high level had the sophisticated argument on the diverse considerations been seen and heard across the country.