The US Supreme Court is still hard at work making decisions and publishing opinions during the coronavirus crisis, although these efforts now go mostly unnoticed while the people frantically scan the news for answers to practical and pressing questions about the pandemic.
Whether the nation’s top jurists miss the attention is unclear because apart from oral arguments there are few opportunities to hear from them. And those hearings—delightful and enlightening occasions open to 50 members of the public willing to wait in line in the wee hours or camp for days for tickets to controversial cases—have been postponed indefinitely as Covid-19 decimates the nation.
Yesterday, the court’s Public Information Office stated that this month’s hearings will again be delayed. They may be rescheduled if public health concerns soon abate. But the justices are also considering “other alternatives if arguments cannot be held in the courtroom before the end of the term.”
This admission is a big deal, given the high court has long resisted technology even while deciding comically postmodern cases.
Yesterday’s announcement (see below) is the second of its kind in four (very long) weeks. This means important matters with consequences for the 2020 presidential elections— cases about Donald Trump’s financial records and the duties of electoral college voters, for example—might be pending for some time.
That’s problematic because oral argument is “jurisprudential theater” with serious political implications, says appellate advocate Timothy S. Bishop, who clerked for late justice William Brennan and has argued seven times before the high tribunal, including the 2018 case of the endangered dusky gopher frog versus Big Timber. The partner at the law firm Mayer Brown in Chicago tells Quartz that these hearings are “important to the court’s legitimacy.”
Bishop doesn’t believe hearings are critical in convincing the justices how to decide most cases because the briefs—the advocates’ written submissions—are extremely detailed despite their deceptive nomenclature. Nonetheless, in matters of exceptional public interest, a hearing helps to shed light on issues and process, thus reassuring the people that the serious business of supreme decision-making is being properly handled by responsible jurists.
Similarly, debate is important in deeply divided, narrowly decided matters because a talented advocate just might swing a jurist on the fence. And in any case, Bishop says, hearings reveal the justices’ humor, collegiality, and legal positions, in addition to influencing how opinions are written.
Winning hearts and minds
Empirical evidence supports the contention that these debates—which Bishop calls “the most exacting and exhilarating craft in the law”—nudge outcomes. Still, practitioners aren’t unanimous on the question of whether they are necessary in this time when distinctions between essentials and electives are preoccupying society.
A March 31 piece in The Dispatch argues that they are:
Scholarly research over the past quarter century demonstrates that oral argument serves critical roles. First and foremost, what transpires during oral argument can actually determine who wins and who loses a case. The data reveal that an attorney who provides a higher quality argument relative to her opponent is significantly more likely to win an individual justice’s vote. And this relationship holds even after accounting for things like the level of ideological agreement between an attorney’s position and a justice. In other words, oral argument actually results in persuasion whereby some justices change their minds.
Certainly, the import of these hearings is not lost on activists. A coalition of progressive groups has repeatedly demanded action on three matters concerning Trump’s financial dealings, which would have been heard on March 31 if not for the pandemic.
The supremes v. postmodernity
The issues raised by current delays only highlight what some say is a longstanding high court technology problem. Cameras and computers are not allowed at hearings. Reporters scribble in notebooks, keeping otherwise dated cursive skills strong but prompting a headlong rush out of the courtroom upon conclusion so as to get the news out.
The situation forces journalists to make difficult decisions. On days when opinions are expected, they must choose between listening to the holdings delivered by the justices—which can be extremely illuminating, revealing both the justices’ gravity and humor—and staying in the press room downstairs to get their hands on the written decisions so as to publish quickly. Those who choose the latter miss arguments on pending matters in the interim.
Judicial transparency advocates have long argued for a more open court. The pandemic proves a point they have been making for a while.
“This is getting ridiculous. If the Supreme Court can conduct its weekly conferences remotely, which it has been doing for weeks, it can conduct its remaining arguments remotely and allow the public to listen in,” according to Gabe Roth, executive director of Fix the Court, a DC-based nonprofit fighting for judicial transparency. In an April 3 statement to reporters, Roth said, “The country has adapted to working over Zoom, Skype and Google Hangouts, and dozens of state and federal courts are keeping the wheels of justice moving via teleconferencing in spite of the pandemic.”
He thinks the justices must finally catch up. “At a time when the public is looking for leadership from its public servants, the Supreme Court is nowhere to be found.”
Normal human interaction
Practitioner Bishop agrees that arguments should be streamed live, particularly after normal operations resume, and says the court could arguably adjust to the current situation as other tribunals have.
But there will likely be glitches. One of his law firm partners recently participated in a telephonic hearing in the Washington, DC Circuit Court of Appeals case and noted that a judge was cut off for a full five minutes—that’s 12% of a 60-minute hearing during which questions fly fast and furious and advocates have to be very quick-witted. The bench was so hot that the judge just couldn’t get a word in edgewise with all the interruptions, and none of the usual conversational cues were available.
There are workarounds. To ensure order in the court, the Second Circuit Court of Appeals judges instituted a rule allowing counsel to speak without interruption for a limited time. “That works,” says Bishop. “But it would totally destroy the dynamic in Supreme Court hearings.”
He highly doubts that the spontaneous and unique nature of oral argument at the high court can be preserved in telephonic or videoconference hearings. “Normally, you’re close to the justices and not aware of anything else. You’re having a conversation.”
The debates are also important because the justices play their questions off of each other, sometimes arguing among themselves. “Oral arguments show normal human interaction,” Bishop explains.
Still, the supremes didn’t get their name because they are everyone’s equals in the legal context, although the people all are under American law. Members of the bench are in charge, and attorneys tread gently in their territory.
“The number one rule from an advocate’s perspective is ‘do not use humor,’” Bishop says, laughing. “That is purely the justices’ prerogative.”