I’ve been looking at the data with an eye towards gleaning a patter from the Court’s decisions. I’m not sure how the decision-making process works, but I’m certain that this is a decision made by the Chief Justice or the entire court- this is not a decision that could be made by the court’s staff.

Assuming that one or more members of the court actively vote on whether or not to grant C-SPAN’s infrequent requests, there are a few theories that could explain how the court decides when to release oral argument recordings on an expedited schedule:

1) A few of the justices wants to emphasize the seriousness of the case to one of their colleagues and therefore allows C-SPAN to air audio coverage of the case. Allowing audio to be released could play a role in amplifying the media coverage of a case and the Justices would certainly notice if their voices were being broadcast on the nightly news. In a case like Heller, the conservative justices might want to make it clear to Justice Kennedy that public opinion belong to their side.

2) The flip side of (1). Justices are trying to underscore the importance of a ruling for one of their fellow justices in an effort to make an uncomfortably broad ruling seem more palatable. For example: In a case like Christian Legal Society v. Martinez, the conservative justices might like to see media coverage minimized so Justice Kennedy wouldn’t feel so uncomfortable ruling in their direction.

3) Another strategic move I haven’t discovered (TITCR)

4) Caprice.

You can see the C-SPAN list below the fold.

2000-2001 Term
1-Dec Bush v Palm Beach County Canvassing Board – Agreed
11-Dec Bush v Gore – Agreed

2002-2003 Term
1-Apr Grutter v Bollinger – Agreed
1-Apr Gratz v Bollinger – Agreed

2003-2004 Term
8-Sep McConnell v FEC – Agreed
20-Apr Rasul v Bush and Al Oday v US – Agreed
27-Apr Cheney v US District Court – Agreed
28-Apr Hamdi v Rumsfeld – Agreed
28-Apr Rumsfeld v Padill – Agreed

2004-2005 Term
13-Oct Roper v Simmons – Denied
2-Feb McCreary County v ACLU – Denied

2005-2006 Term
30-Nov Ayotte v Planned Parenthood of Northern New England – Agreed
6-Dec Rumsfeld v Forum for Academic & Institutional Rights – Agreed
16-Feb Request to tape the investiture of Alito at the Court – Denied

1-Mar League of United Latin v Perry – Denied
28-Mar Hamdan v Rumsfeld – Agreed

2006-2007 Term
8-Nov Gonzalez v Planned Parenthood – Agreed
8-Nov Gonzalez v Carhart – Agreed
4-Dec Parents Involved v Seattle School District No. 1 – Agreed
4-Dec Meredith v Jefferson County Board of Education – Agreed
10-Jan Davenport v Washington Education Association – Denied
20-Feb Rita v United States – Denied
25-Apr FEC v Wisconsin Right to Life – Denied

2007-2008 Term
9-Oct Stoneridge Investment v. Scientific Atlanta – Denied
10-Oct Medellin v. Texas – Denied
5-Dec Boumediene v. Bush & Al Odah v. U.S. – Agreed
7-Jan Baze v. Reesv – Agreed
9-Jan Crawford v. Marion County – Denied
18-Mar District of Columbia v. Heller – Agreed
25-Mar United States v. Ressam – Denied
16-Apr Kennedy v. Louisiana – Denied

2008-2009 Term
8-Oct Winter v. Natural Resources Defense Counc – Denied
6-Oct Altria Group, Inc. v. Good – Denied
4-Nov FCC v Fox Television – Denied
12-Nov Pleasant Grove City v. Summum – Denied
3-Dec Philip Morris USA Inc. v. Williams – Denied
10-Dec Ashcroft v. Iqbal – Denied
3-Mar Caperton v. A.T. Massey – Denied
29-Apr Northwest Austin Municipal Utility District v. Holder – Agreed
9-Sep Citizens United v. Federal Election Commission – Agreed

2009-2010 Term
2-Nov Jones v. Harris Associates – Denied
9-Nov Graham v. Florida – Denied
9-Nov Sullivan v. Florida – Denied
23-Feb Holder v. Humanitarian Law Project – Denied
1-Mar Skilling v. U.S. Enron – Denied
2-Mar McDonald v. Chicago – Denied
19-Apr Christian Legal Society Chapter v. Martinez – Denied

Total Cases – 46 (not counting request for Alito investiture)
Agreed – 21
Denied – 25

Related posts

• Oral Argument audio recording released in Northwest Austin (April 29, 2009)
• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)

The article does note however, that Olson has won 44 out of 55 cases, which is an incredibly impressive record. I have to mention though, that many of those cases came while he was the SG for a conservative President and before a fairly conservative Court. His record reminds me a bit of Thurgood Marshall’s record of winning 29 out of 32 cases, although many (most?) of his came while he was counsel for the NAACP arguing against a hostile Court.

Related posts

• Ted Olson’s Performance in OT08 May Be Most Prolific in Two Decades (August 11, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Kagan to Split Time with Waxman in Citizens United (July 24, 2009)

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Bartlett v. Strickland – Argued on October 14, 2008 (transcript here)- 62 days ago – Bartlett revolves around whether or not a minority group can file suit for vote dilution under certain circumstances.

FCC v. Fox Television Stations Argued on December 4, 2008 (transcript here)- 42 days ago – Fox asks whether or not the use of ‘fleeting expletives’ violates federal regulations against obscene and vulgar language.

Pleasant Grove v. Summum – Argued on December 12, 2008 (transcript here)- 34 days ago -Summum followers asked to place a monument to the ‘Seven Aphorisms‘ be placed near a monument to the Ten Commandments in Pleasant Grove, Utah. See more analysis on the case here.

Ashcroft v. Iqbal – Argued on December 10, 2008 (transcript here)- 5 days ago – Ashcroft asks whether or not a high-level government official can be held liable for supposed mismanagement in crisis.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Thoughts on Danforth (February 25, 2008)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)