When a lawyer for a retired federal employee told the court that he wasn’t asking it to “break any new ground” in interpreting a federal statute, Gorsuch interjected that, no, he was just asking the court “to continue to make it up.”
Was this said in a sarcastic tone or a gently humorous one? The easy way to find out is to listen to the audio recording of the argument — but you’ll have to wait until Friday, the day when the recordings of arguments from Monday, Tuesday and Wednesday are customarily posted on the court’s website. But by then the interest in Gorsuch’s first day in the job may have ebbed.
Why not routinely post the audio on the same day? That’s when transcripts are posted.
The idea of same-day audio has been pressed on the court for some time, including by this writer. But the justices continue to resist, though they will occasionally authorize same-day posting of arguments in high-profile cases.
One example was the 2012 arguments in the challenge to the constitutionality of the Affordable Care Act. That allowed for same-day broadcast of the late Justice Antonin Scalia’s infamous analogy between a requirement that Americans purchase health insurance and a requirement that they buy broccoli.
The court also allowed same-day posting of the audio of the arguments in the cases that produced the landmark 2015 decision affirming a right of marriage for same-sex couples. But these exceptions have been, well, exceptional.
On Wednesday the court will hear another potentially momentous case, one that could transform the relationship between church and state. A Lutheran preschool in Missouri is challenging a state constitutional provision, similar to those in many other states, that prohibits state aid to religious organizations. In this case, the school had been denied participation in a state program that provides playgrounds with rubber protective surfaces made out of converted tires. (Missouri’s new governor has announced a change in the state policy of excluding religious organizations from the program, but that may not keep the court from deciding the case.)
An important case, but no same-day audio.
Whether a citizen is fascinated by the legal issues involved, or just curious about what the newest member of the Supreme Court sounds like, there is no reason why he should have to wait four days to listen to arguments that can be easily uploaded in a matter of hours. The court’s delay is supremely annoying.