It's official: for the seventh and final time this term, the Supreme Court has turned down a request from the media for same-day access to the audio of its oral arguments. C-SPAN and other broadcast networks had requested the audio for today's oral argument in Christian Legal Society v. Martinez, an important church-state dispute that has attracted broad interest and amicus participation.
With the Court's oral argument season ending April 28, that means the entire current term will end with none of the arguments being given same-day treatment -- the first term since 2004-2005 in which no arguments were approved for immediate release. The Court first allowed for such release in high-interest cases with Bush v. Gore in 2000, to enable the press and the public to hear the arguments while they were still fresh and newsworthy. Without expedited release, the audio of oral arguments is not usually available to the public until several months after the end of the term, after processing at the National Archives -- long after their news value has expired.
The Court's criteria for accepting or rejecting the media's request in a given case have never been spelled out and have always been mysterious -- an elusive mix of media and public interest, judicial indifference, and a certain je ne sais quoi. But now the criteria seem nonexistent; the jalopy has died.
How else to explain why none of these seven cases requested were deemed worthy of same-day release: Jones v. Harris Associates, on fees for mutual fund advisers; Graham v. Florida and Sullivan v. Florida on life without parole for juveniles; Holder v. Humanitarian Law Project, testing the ban on "material support" for terror groups; Skilling v. United States, on "honest services" fraud; McDonald v. Chicago, asking whether the Second Amendment applies against state and local gun regulations; and now Legal Society Chapter v. Martinez, asking whether state universities can require religious clubs to accept nonadherents as members and leaders as a condition of official recognition.
This article first appeared on The BLT: The Blog of Legal Times.