The U.S. Supreme Court took a drastic step on March 16, postponing its oral arguments scheduled for the next two weeks “in keeping with public health precautions” responding to the COVID-19 outbreak.
Mindful of its precedents, the court’s announcement noted that scheduled arguments were postponed in October 1918 in response to the Spanish flu epidemic. Going back to the court’s earliest days, the release added that the court “also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
But that was then. Now, technology could have created a new precedent by allowing the oral arguments to proceed, with only the justices and participating lawyers attending at the court’s chamber. The arguments could have been made public by livestreaming audio of the proceedings on its website, and the disruption of the court’s work schedule would have been avoided.
Numerous organizations had urged the court to take that approach as soon as the justices announced on March 12 that the court was closed to the public “until further notice” because of the virus crisis.
“The court should at a minimum permit the public to listen to a livestream of argument audio from its website,” said Gabe Roth, executive director of the reform group Fix the Court. “Live audio is the smartest way to balance the now-competing concerns of public safety and public access.”
So why did the high court ignore the suggestions and opt for the most drastic solution? One answer, of course, may be that the court was trying to protect the justices themselves from exposure. Only three of the nine justices — Elena Kagan, Neil Gorsuch and Brett Kavanaugh — are younger than 65, the age that health experts have said makes people more vulnerable to the virus.
But almost certainly, another reason was at play; the justices simply do not like the notion of broadcasting the court’s proceedings, whether on television, radio or livestreaming.
For decades, news organizations, public interest groups and members of Congress have implored the court to permit the broadcast of its proceedings so the public can learn how the nation’s highest court works.
With minor exceptions, those efforts have failed miserably at the hands of the justices, who cherish their anonymity and hoary traditions. In its jurisprudence, the court has breathed life into the First Amendment for the last century or so and has embraced public access to trials in several of its rulings. State and lower federal courts have adopted livestreaming without mishap. Yet when it comes to allowing the public to listen to its own proceedings live and online, the Supreme Court has adamantly taken a NIMBY approach – not in my back yard.
Justices have asserted numerous reasons for avoiding broadcast coverage. Chief Justice John Roberts Jr. once said, “We don’t have oral arguments to show people, the public, how we function. We have them to learn about a particular case in a particular way that we think is important.” Justice Stephen Breyer and others have also voiced concern that cameras would alter the dynamics of oral arguments, making justices shy about asking certain questions and encouraging lawyers to craft stirring soundbites for the nightly news.
The court does make public the audio of oral arguments on the Friday of the week in which arguments take place — typically, Monday, Tuesday and Wednesday. The reason for that delay has never been fully explained, but the result is that by the time the audio is made public, it is “old news” for media organizations that would have otherwise used the audio for reporting on the day of the argument at hand.
Earlier in the current century, the court did allow for the release of argument audio on a same-day basis — but later in the day — for some high-profile cases. The practice has withered away though, and same-day delayed release has not occurred since April 13, 2018, when the audio of Trump v. Hawaii, the so-called travel ban case, was expedited.
Why is the court reluctant to take the next step toward livestreaming rather than delayed streaming? Again, the reasoning has not been explained, but it may be that the court wants to retain control over the audio in case something untoward happens in the court — protesters shouting in the courtroom, for example, or “hot mic” accidents when justices talk privately to each other on the bench and their words are captured on the audio. Both have occurred in recent years. Delaying the release of the audio, even for a few hours, would give the court time to edit the audio — something that would not be possible in livestreaming.
Nonetheless, transparency advocates keep trying to nudge the Supreme Court into the 21st century. House Democrats recently introduced The 21st Century Courts Act which, among other things, would require the Supreme Court to stream its proceedings in “real time.”
U.S. Representative Mike Quigley, D-Illinois, one of the sponsors of the bill, wrote in a letter to Chief Justice John Roberts Jr., “It is 2020, and we are long past ‘television’ — livestreaming has become commonplace not just in daily life but also in most appellate courts in the country. It is long past time for the Supreme Court to join them.”
Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.