THOSE WHO have heard the White House tapes that were used as evidence in the courts as well as read the transcripts report that one doesn't work very well without the other. Just as it is difficult to follow what is being said without a transcript, so it is hard to understand the full meaning of the written words without actually hearing them spoken. And that is why, with the transcripts already available, it is so important for the public to have access to the tapes as well. Their availability would make it easier to judge the fairness of the courtroom verdicts against Nixon administration officials and, for that matter, to judge the outcome of the whole Watergate affair.
Unfortunately, the Supreme Court has, for now at least, delayed the time when those tapes will be available. By ruling that the news media cannot get access to copy the 22 hours of recordings used in court, the justices have lumped those recordings in with all the others that were seized under congressional order in 1974. Their avaliability will now depend on rules issued by the General Services Admimistration. Since those rules will certainly be challenged in court, it is not at all clear when, if ever, the courtroom tapes will become available. There is some irony and a bit of buck-passing in all this. GSA has been relying on the courts for guidance in drawing up those rules, and now the Supreme Court says GSA and Congress have "superior resources" to decide who, when and if the tapes can be released.
The court reached that result in a way that says less about Watergate than it does about the current trend toward secrecy in the courts and the persistent refusal of the Justice Department to accept modern technology. The seven-man najority did assert, for the first time, that there is a public right to inspect a copy judicial records, like the 22 hours of tape recordings. But then they proceeded to whittle down that right. Access to records and files, they said, can be denied if it is being sought "for improper purposes," such as promoting public scandal, gratifying private spite or seeking libelous statements as business secrets. But none of those reasons applies to the request for the White House tapes. So the justices seized upon the passage by Congress of a law governing the ultimate release of the originals of those tapes and ruled that the existence of that legislature procedure forecloses judicial consideration of the request. That idea was, you might say, the Supreme Court special - none of the lawyers or lower-court judges involved had thought of it. Indeed, the lawyers specifically rejected reliance on that law in arguing the case.
Since no case like this one is likely to arise again, the precise ruling is not of great importance. But the overtones of the decision are. There is an indication that the justices were looking for a way - almost any way - to avoid making the tapes public and perhaps opening an era in which the sounds heard in a courtroom can also be heard at home. In doing so, however, they opened the way for a judge with a passion for secrecy to deny access to other records, like written documents on grounds that they are being sought for "improper reasons" or because some law governs their ultimate release. We have noted before the penchant for secrecy that already exists in lower courts. The same penchant is evident in this decison, particularly when it is taken together with the court's refusal recently to review a Florida case barring public access to the normally available transcripts of judge-lawyer conferences.
In a few years, we suspect, arguments about whether the public should be able to hear courtroom evidence like the Watergate tapes will be passe. Television and radio are beginning to broadcast trials in some state courts, and the trend is toward more such broadcasts. The Supreme Court should be guiding that trend by setting standards when it gets an opportunity. It could have helped by setting standards for the release of those tapes. Instead, it chose to resist technological change and, in the process, to create ways for courts to become more, rather than less, secretive.