The Court Tapes -- Publication Of Tapes Of Famous Arguments Before The Supreme Court Has Stirred Legal Criticism And Has The Justices In A Snit

Peter Irons has his work cut out for him.

The 53-year-old attorney and political science professor may soon be taking on the toughest possible legal opponent: the entire United States Supreme Court.

He is no stranger to controversy. A 1960s civil-rights activist who later served 2 1/2 years in federal prison for draft resistance during the Vietnam War, Irons has angered the court by making public some of its most significant debates in the past four decades - debates such as Roe v. Wade on abortion rights, Cooper v. Aaron on school desegregation in Little Rock, and United States v. Nixon on the Watergate tapes.

Irons, who is director of the Earl Warren Bill of Rights Project at the University of California at San Diego, released copies of the tapes through the nonprofit publisher, The New Press, only after signing a pledge not to reproduce them. The court considers it a "clear violation" of Irons' contract with the National Archives, said a court spokeswoman, and "is considering what legal remedies may be appropriate."

Public records

Irons, on the other hand, considers it common-sense disclosure of public records and adamantly rejects the court's justification for its restrictive rules.

"It seems a little odd that they have only complained when the tapes were made available more widely to the general public," said Irons in a telephone interview. "Why is it in the public interest to require every person who wants to use one of the tapes to go through the laborious and expensive and time-consuming procedure Supreme Court public information officer of requesting each one individually from the National Archives - and then waiting months for a response?"

The tapes, Irons pointed out, have been available to legal scholars for years, and the court has "never defined what the harm would be by wider release of these tapes." He said he is distressed by what he called the court's attempt at "trial and conviction through press release."

The tapes are available at bookstores in a boxed set titled "May It Please the Court. . ." - the traditional opening phrase used by attorneys before the nine justices. Priced at $75, the package edited by Irons and his associate, Stephanie Guitton, includes six 90-minute audiocassettes and a 370-page book of transcripts of oral arguments in 23 landmark decisions.

Irons admits that he asked neither the court nor the National Archives for permission to reproduce the tapes.

"I knew perfectly well that . . . it would be an exercise in futility," he said, acknowledging that he agreed not to reproduce the tapes or allow them to be reproduced for any purpose. The contract with the archives, provided by the court to The Seattle Times, also shows that Irons agreed "to use such audio tape for private research and teaching purposes only."

Though the agreement seems clear-cut, Irons explains his signing and subsequent disregard of it in true lawyerly fashion. His release of the tapes, he said, is "consistent with the contracts to the extent that the contracts are intelligible at all."

The tapes, he continued, "belong to the American people. They do not belong to the Court or to the justices. . . . They're public records."

Recording since 1955

The Supreme Court itself began recording oral arguments for internal use in 1955, and in 1969 began turning the tapes over to the National Archives, where copies are made available "for private research and teaching purposes only." The archives bars duplication of the copies for any other use, including radio or television broadcast - a provision already violated this week when National Public Radio aired excerpts from "May It Please the Court. . ." during a three-day series on its "Morning Edition" news program.

Calling the set of tapes a "clear violation of Professor Irons' contractual commitments," the spokeswoman for the Supreme Court notes that others have sought permission to reproduce the tapes and such requests have been routinely denied.

"He signed several contracts with the archives, but he must have had his fingers crossed behind his back," said Toni House, the court's public information officer. The tapes, she said, belong to the court and the court had neither the obligation to produce them nor to deliver them to the archives.

However, in a telephone conversation House was unable to articulate any compelling public interest in restricting distribution of the tapes. She acknowledged that copies of the tapes were available to scholars and even for classroom use. What further public interest was served in denying the taxpaying public access to the tapes?

Sound bites

"The court," she said, "is concerned about distortion and sound bites." House refused to say what actions the justices might take when they reconvene later this month, noting only that the court has its own lawyers and could refer the matter to the Justice Department.

Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, in California, does see some purpose in the court's restrictions.

"Oral arguments are high-pressure situations, for both the judges and the lawyers," said Kozinski in a telephone interview. "Judges may be hesitant to ask questions if they know that every stutter will be on the evening news."

But constitutional scholar Laurence Tribe of the Harvard Law School agrees with Irons that the court has "no legitimate general interest" in precluding distribution of the tapes. In fact, Tribe said by telephone, the "general public ought to have access to the tapes. It's wrong in principle that the only people who have access to these arguments are those that can fit into the courtroom."

However, he noted that "it doesn't follow that the restrictions are unconstitutional or that you should take the law into your own hands . . . I think that's a pretty extreme way of challenging a rule."

Louis Michael Seidman, a constitutional law professor at Georgetown University and a former clerk to Justice Thurgood Marshall, agrees with Tribe, saying that the court "looks foolish" for refusing to release the tapes and that it "makes the court look like it has something to hide."

A glimpse inside

The tapes themselves are a fascinating glimpse into the marble and velvet-shrouded public courtroom of the highest court in the land. Among other highlights, they include:

-- Gideon v. Wainwright, in which the Court established the right to counsel for the poor. Abe Fortas, later a Supreme Court justice himself, shakes with indignation at the state of Florida's suggestion that an indigent could possibly match the state without the assistance of counsel, as he booms "(n)o man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial."

-- Cooper v. Aaron, in which the court rejected the state of Arkansas' attempt to block school integration. A young Thurgood Marshall makes a passionate argument, including: "I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future. I don't worry about those Negro kids' future, They've been struggling with democracy long enough."

-- United States v. Nixon, or the Watergate tapes case. This tape includes then-Justice Marshall's cutting cross-examination of James St. Clair, President Richard Nixon's lawyer, on whether the president would obey the court's ruling if it compelled release of the Watergate tapes.

-- Gregg v. Georgia, in which the court held the modern death penalty constitutional. Robert Bork, then U.S. Solicitor General, made a ponderous argument for the government, facing off against New York University's sparkling Anthony Amsterdam.

-- Roe v. Wade, in which the court first recognized constitutional protection for abortion. Texas Assistant Attorney General Jay Floyd began his argument against young attorney Sarah Weddington with a ghastly, perhaps revealing, attempt at humor: "It's an old joke," Floyd says, "but when a man argues against two beautiful ladies like this, they're going to have the last word." No one laughed.

There are many other prominent or controversial arguments, from "one-man-one-vote" in Baker v. Carr, to the right to remain silent in Miranda v. Arizona. Irons has done a masterful job of editing the tapes, and he introduces each with a brief background on the case. From time to time, he interrupts the tapes to identify (and sometimes misidentify) the justices asking questions, and he concludes each with a brief summary of the court's ultimate ruling.

The summaries make clear Irons' personal approval or disapproval of the results, but he argues that "it is virtually impossible to totally eliminate your personal perspective on things. I've never made any pretense of being totally unbiased"

Ultimately, the tapes are a wonderful resource, even if sensationalized by the method of their release. The contrast between the more emotional and passionate arguments of the early tapes and the cooler, more formal recent arguments is striking.

Stripping away mystique

For the vast bulk of the American public, unable to attend any argument before the high court - much less 23 of its most important - the tapes are invaluable. They strip away the court's black-robed mystique to reveal the very human, very simple, and very compelling core of nine men and women struggling to come to terms with difficult issues in a responsible way.

As Irons notes, the tapes make the court look like the serious, deliberative body it is.

"There is nothing on the tapes that diminishes the integrity of the court," he said. "I think that people will have a better understanding of the Court as an institution and also (an opportunity) to experience these historic cases."

- Kevin J. Hamilton is an attorney with the Seattle firm Perkins Coie.

----------------- TAPES ON INFOLINE -----------------

One of the landmark cases heard before the Supreme Court was Roe vs. Wade, in which attorney Sarah Weddington argued for the right of a woman anonymously named Jane Roe to have an abortion. To hear an excerpt from that case, taken from "May It Please the Court," call The Seattle Times InfoLine at 464-2000 and enter category 6876. The call is free in the Seattle dialing area.