Oral Arguments and Footnotes

Mr. Enrich: In a footnote in Flast [v. Cohen], the Court specifically says, “Having now decided that there’s Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing.”
Justice Scalia: I had not recollected that footnote. I will — I will find it. I don’t read footnotes, normally.

TaxProf Blog: Supreme Court Releases Transcript of Oral Argument in CunoCuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), cert. granted, Nos. 04-1704 & 04-1724

Who can blame the man? Few disciplines have heavier footnotes than law. I sometimes think I chose it as a discipline for its footnotes, because I’m incurably parenthetical, which is something that footnotes help to accommodate (along with m-dashes, brackets and braces).

But note that “TaxProf” discovered this because transcripts of oral arguments are made public by SCOTUS: http://supremecourtus.gov/oral_arguments/oral_arguments.html; whereas, as Nick Pengelley points out in his recent Slaw posting, copies of our Supreme Court’s transcripts might be had for a fee from the Canadian Parliamentary Affairs Channel (CPAC), which televises (some of) and video records (all of?) the court’s proceedings.Evidently CPAC is offering “podcast versions of select programs.” Supreme Court hearings are not among these yet, but might be coming.

In the New York Times today, the U.S. Supreme Court, footnotes and transcripts come together again. In Georgia v. Randolph (No. 04-1067), the court split 5-3 (Alito recusing himself) on a matter of criminal search. What amused me was this statement:

[A]s has often been the case in the court’s recent past, although not so far this term, the justices revealed their real feelings in the footnotes.

The devil is in the footnotes, where one can be not just parenthetical but snarky. (E.g. of high judicial snark: “Chief Justice Roberts responded in turn. The majority had mischaracterized his position on privacy and ‘seems a bit overwrought,’ he said in a footnote.” Take that!)

In the same article, because the transcripts are available, the reporter was able to point out that during argument Justice Breyer raised a question about whether a party’s position wouldn’t hinder the investigation of domestic abuse, something that cast useful light on his ultimate concurring opinion.

Opinions might be seen as sandwiched between oral argument and footnotes; it’s probably wise to read both — if you can.


  1. Surely Justice Alito didn’t recuse himself (which would have implied involvement in the case).
    The case had been hanging around for quite some time, and I believe was the oldest case on the active docket. Alito was still on the Court of Appeals when this was going through.
    He didn’t write, because he hadn’t heard the arguments and wasn’t part of the court’s deliberations.

  2. You’re right, of course, Simon. I misremembered what I’d read. Somehow I thought he’d been involved at the lower levels.

  3. Who pays for the transcripts to be transcribed? It isn’t free – voice-recognition software is not so good that the product does not need editing. Does the SCOTUS pay for the transcribing or editing? Does some other public office?

    I would rather read a transcript than watch or listen to it, since it’s much faster to read, and one can linger on the important bits and skim the tedious bits (which are which will depend on the reader). Not interested in the video, though it could be useful to some as an advocacy lesson.

    Do people think that the transcripts of most cases in the SCC would ever be read? Or is it really an issue for the dozen or score of the top cases a year on which anyone would want that level of detail, at the cost of the rather numbing routine arguments? (That’s aside from how payment might be collected to cover costs of production. At present it is a pretty speculative market for a private provider.)

    It should be easier and cheaper to provide public access to the factums – the court could require them to be filed in soft as well as hard copy, if it does not do so already. (Doesn’t the Ont Court of Appeal do so?) Then putting them on the web, at least in their original language, is no problem and practically cost-free.