The coronavirus pandemic is forcing all courts to alter their procedures, but the US Supreme Court, imbued with an archaic, insular air and a majority of justices over age 65, will face a distinct challenge to keep operating and provide public access to proceedings.
The justices for years have refused to televise hearings, livestream the audio from sessions or even provide recordings of oral arguments the same day they are held. The Supreme Court of Canada, meanwhile, has been webcasting its proceedings for more than a decade, some lower US courts livestream audio of arguments, and many US state courts allow live TV coverage.
The virus is bound to force Supreme Court justices into new territory. They may open their operations in more modern ways. Or, if they move in the opposite direction and shun any high-tech alternative, they might postpone all previously scheduled March and April oral argument sessions, a total 20 disputes, until next summer or fall.
This very practical dilemma comes as the justices already have one of the most substantively difficult slate of cases in years, testing abortion rights, anti-bias protections for LGBTQ workers, and the Trump administration’s plan for deportation of certain undocumented immigrants who came to the US as children. (Those cases have already been argued, and the justices are drafting opinions to be released later this spring.)
As a group, the justices are in a risky category for human contact amid virus fears: Ruth Bader Ginsburg is 87; Stephen Breyer, 81; Clarence Thomas, 71; Samuel Alito, 69; Sonia Sotomayor, 65; Chief Justice John Roberts, 65; Elena Kagan, 59; Brett Kavanaugh, 55, and Neil Gorsuch, 52.
Further, Ginsburg has undergone treatment for cancer four times, including lung cancer in late 2018. Sotomayor has had diabetes since she was a child and spoken widely about her personal experiences with the condition.
The justices will meet in some fashion behind closed doors on Friday, to take stock of previously argued cases that may be ready for final decisions and to determine which pending appeals should be added to their future calendar. Court officials said some justices will participate in that regular Friday session by telephone. Those who do gather together would no doubt forego their usual custom of handshakes before business.
If they are weighing a more sophisticated audio or visual connection — to each other, and to the public — the justices have the support of an on-site technology team and young law clerks, four per chamber. At the other end of the spectrum, they might weigh canceling the remaining argument sessions and resolve the cases based only on the written briefs filed. Those lengthy filings are more comprehensive than lawyers’ presentations in hour-long oral sessions.
Still, the hearings offer lawyers a chance to stress certain points and respond directly to skepticism justices may voice toward their positions.
And one of the reasons the justices have given for their anti-TV policy is the importance of oral arguments in the resolution of disputes. Chief Justice Roberts said in October 2018 that cameras could disrupt “what we think is a very important and well-functioning part of the decision process.”
In a separate 2018 appearance, Roberts said, “The courtroom is a very special place. Maybe part of what makes it special is that you don’t see it on television.” He said he worried about lawyers or even justices “playing to” the camera and undermining the gravity of arguments.
Other justices have echoed those justifications. In March 2019, Alito and Kagan told a US House committee that televising sessions would be disruptive. They feared lawyers would speak in “soundbites” or justices’ questions, which are sometimes offered in hypothetical scenarios, would be misinterpreted.
But there is no getting around that this is an old-fashioned institution that resists change, for better and worse. The charm of another era permeates the courtroom, opened in 1935. Lawyers who argue receive a souvenir quill pen. The building still relies on elevator operators and messengers who carry the justices’ written drafts of opinions from chamber to chamber.
But to see the historic grandeur of the marble courtroom where arguments are held, one must come to the scene. People typically travel from across the country and line up for hours or days to get a seat for major cases. Earlier this month, for oral arguments in an abortion-rights dispute from Louisiana, people began camping out for scarce seats three days early.
“If people go to these lengths, just to watch their government in action,” US Appeals Court Judge J. Harvie Wilkinson asked Roberts during an interview at a June 2018 legal conference in West Virginia, “has the time now come to televise the argument before the Supreme Court?”
Roberts was unyielding and the cameras remain barred.
What happens now?
So far, the court has responded to the coronavirus crisis by postponing the 2-week oral argument session that was scheduled to begin March 23 and saying the justices will watch as the situation develops.
Among the disputes now on hold are two centered on President Donald Trump’s tax returns and other financial records, sought by the Manhattan district attorney and US House committee investigators.
In its Monday news release announcing the postponement of March cases, the court did not suggest any new technological alternative but said it would “examine the options for rescheduling those cases in due course.”
The US Court of Appeals for the District of Columbia Circuit, located just down the street from the Supreme Court, has a practice of livestreaming the audio of its argument sessions and plans to continue holding some oral arguments with lawyers by teleconference.
US District Court Judge Claire Eagan of Oklahoma told reporters in a conference call on Tuesday that most federal courts were exploring alternatives for postponed courtroom sessions, including telephonic hearings. Eagan was representing the Judicial Conference, the policy-making arm of the federal judiciary. She said lower court judges were still considering how to ensure public access to hearings.
Russell Wheeler, formerly of the Federal Judicial Center, a research arm of the US courts, and now at the Brookings Institution, said he believed Roberts would ultimately see “the inevitability” of televising or otherwise audio streaming high court sessions.
Referring to the other eight justices, Wheeler said, “I think Roberts could bring them along, at least bring them into the latter part of the 20th Century, if not the 21st.”