Wednesday, November 3, 2010

Before Supreme Court TV, How About This?

As requests intensify for the Supreme Court to televise its arguments, see herehere, here, and a list here, some food for thought on access at the circuit court level.

"[M]ost determinative legal interpretations occur [not in the Supreme Court, but] instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts."  Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006).  Since the Supreme Court's docket is discretionary, less than 100 cases per Term in recent years, most federal courts of appeals decisions are final.

And yet, only seven of the thirteen federal appellate courts post oral argument audio to their websites, let alone video.  The Ninth Circuit leads the way, posting audio, as well as select video.  Permanent links are here (Appellate Daily's right sidebar: Resources, Oral Argument Audio).

Of the courts not posting audio to their websites, the Second, Fourth, Sixth, Tenth, Eleventh, and D.C. Circuits, perhaps the most surprising is the last.  The D.C. Circuit hears cases originating from all states, via its jurisdiction over administrative agency appeals, creating effects and interest nationwide.  Why, then, no nationwide web access to its arguments?  In addition, the Supreme Court and Federal Circuit, also in D.C., post audio to their websites (a new development this Term for the Court).

The other holdout circuits also issue crucial, final decisions.  For instance, the Second Circuit frequently decides securities cases with national implications.  And when the Supreme Court does grant certiorari in cases from these circuits, readily accessible argument audio would be a helpful tool for the public and media to understand the dispositions below.

But, beyond the internet, can't a person obtain audio from these circuits?  In many cases, yes, but not without paperwork, conditions, and/or cost, as shown, for example, in the D.C. and Tenth Circuits' procedures.  The Eleventh Circuit is the least open, restricting audio to internal court use only, per a telephone call to the Clerk's Office.

So, as efforts go forward to move the Supreme Court to TV, with some federal circuit courts (the source of "most determinative [federal] legal interpretations"), even huddling around the radio, so to speak, is not a given.