It has been one month since the Supreme Court announced on March 16 that, in response to the COVID-19 outbreak, it would cancel its March argument session, which was slated to include the disputes over access to President Donald Trump’s financial records. On April 3, the justices announced that their April argument session, which had been scheduled to begin next Monday and run through April 29, had also been postponed. 10 days later, the court made a third announcement: It would hold arguments remotely and, in an unprecedented move, make the live audio of those arguments available to the public.
Since the beginning of the pandemic, the court – which has often stayed open and heard argument even when inclement weather or budgetary constraints shut down other government institutions – has been operating in relatively uncharted waters. As Tom Goldstein discussed on SCOTUSblog last month, the closest analogy may be the Spanish flu of 1918, which prompted the justices to postpone oral arguments for approximately a month in the fall of that year. But the Supreme Court of 2020 has one advantage available to it that the justices of 1918 did not – modern technology. In the weeks since the justices announced that the March argument session would be postponed, many state supreme courts and lower federal courts around the country have responded to the pandemic by holding arguments remotely. Some, like the U.S. Court of Appeals for the District of Columbia Circuit, held oral arguments by telephone, while others – such as the highest courts in Michigan and Texas – relied on video-conferencing platforms such as Zoom. In each of these courts, the public could listen to (for the D.C. Circuit) or watch (for Michigan and Texas) the oral arguments in real time.
The initial experiments with remote arguments did not go off seamlessly. Bloomberg Law’s Lydia Wheeler reported that in a March 20 argument in the D.C. Circuit, involving a challenge to the Trump administration’s expansion of the duration of short-term health-insurance plans, the three-judge panel “struggled with conducting the proceedings remotely.” One judge, Thomas Griffith, “was dropped from the call for over five minutes.” “It’s kind of a mess,” Griffith said when he returned to the call. There were also “momentary audio hiccups and minor glitches” when the Texas Supreme Court heard oral arguments remotely for the first time on April 8, according to Chuck Lindell of the Austin American-Statesman. But the overall verdict from Chief Justice Nathan Hecht of the Texas Supreme Court was positive, with Hecht telling the Statesman that he “thought the interchanges, the questions and responses, went really well.”
Faced with the prospect that it might not be safe to hold in-person oral arguments for some time, the justices opted to go ahead and hold oral arguments remotely in May. They announced this week that 13 cases – for a total of 10 hours of argument – would be scheduled over six days in early May. And not only would be oral arguments be conducted by telephone, with both the lawyers and the justices participating remotely, but a live feed of the arguments would be made available to the public – a historic development for a court that has normally declined even to provide audio on the same day as arguments in major cases.
The justices almost certainly put a great deal of thought into both the decision to hold remote arguments and the format for those arguments. On the one hand, holding an oral argument by telephone might have more of an effect on the overall dynamic of the argument than would using a video conference platform. The Supreme Court is known as a “hot bench,” with justices who constantly ask questions and interrupt the lawyers and each other, but that might have to change over the phone, when neither the advocates nor the justices will be able to see each other and read nonverbal cues.
On the other hand, the justices likely recognized that if the arguments were held remotely, the public would have to be given access through a live feed. And once the COVID-19 crisis is over and in-person arguments resume, it may be hard to put the genie back in the bottle, and go back to the old system in which audio is not available until later in the week. After all, the same technology to live-stream the audio feed will still be available when the arguments are held in the courtroom; the only difference will likely be that the argument itself will go more smoothly once the justices and the lawyers are all in the same place.
Moreover, a trial run with live audio of oral arguments is likely to debunk one of the claims most commonly offered by the justices against live-streaming arguments – the idea that it will lead to “grandstanding” by advocates who are more interested in getting soundbites on the news than making their legal case to the court. (Some justices have also cited concerns about grandstanding by the justices themselves, but that would be a problem entirely within their control.) Such problems have not surfaced in other courts where the oral arguments have been live-streamed: Justice Barry Anderson, who sits on the Minnesota Supreme Court, made clear in an exchange on Twitter that he has not seen any examples of grandstanding linked to live-streaming, while Judge Stephen Dillard of the Georgia Court of Appeals said that there have been no issues with judges or lawyers engaging in inappropriate behavior since the Georgia courts began to live-stream oral arguments. Indeed, audio for all three of the cases involving efforts to gain access to the president’s financial records was live-streamed when the cases were argued in the courts of appeals, without any reports of grandstanding by lawyers or judges.
Allowing live audio even after arguments resume in the courtroom would also be a concession to calls for increased transparency at the court that could stave off, probably for quite a while, pressure to live-stream video of oral arguments. The justices seem particularly resistant to allowing cameras in the courtroom – which would go well beyond what virtually all federal courts of appeals did prior to the pandemic – not only because of their concerns about grandstanding but also because they worry that protesters might try to take advantage of the forum for free publicity (not to mention, although the justices may not have said so out loud, because of their own privacy concerns). They may have decided to go with remote arguments by teleconference in the short term, despite the potential effect on the dynamics of the arguments, because they would rather live with the longer-term implications – live audio versus live video – of that choice. Stay tuned.
This post is also published on SCOTUSblog.