On Monday, the United States Supreme Court announced that it was postponing the oral arguments scheduled for the weeks of March 23 and March 30 due to the coronavirus. But there was another alternative: It could have conducted the proceedings by remote technology and allowed the public to watch.
There is precedent for postponing oral arguments. On Oct. 8, 1918, because of a deadly influenza pandemic, the court recessed and did not begin hearing cases again until Nov. 4.
The March 2020 oral argument calendar has some very important cases. On March 31, for instance, there were supposed to be three cases as to whether the president and those doing business with the president, such as accountants and banks, have immunity from subpoenas.
During these two weeks, the court will hear an enormously important intellectual property dispute, Google v. Oracle, and cases about whether religious schools are broadly exempt from anti-discrimination laws.
There was an alternative for the court: holding its hearings electronically and providing live video streaming. The University of California, Berkeley, including my law school, has canceled all in-person classes and is conducting all classes by distance learning, such as over the platform, Zoom. This is being done at universities all over the country.
Although it is not the same as being in the classroom together, it works. For a Supreme Court argument there are nine justices and one advocate at a time. That would be easy to do over Zoom or a video technology like it. The lawyers could argue and the justices could ask questions, the same as always. In fact, I have had a number of arguments in the 9th U.S. Circuit Court of Appeals where a judge was absent and participated remotely.
If the court were to do this, it would need to live stream the arguments and also make them available on their website after they are done. Many courts have done this for years without incident. For example, the 9th Circuit Court of Appeals streams oral arguments and then makes them available on their website. I have never heard a lawyer or judge complain about this.
The Supreme Court has been very resistant to allowing cameras or even live audio broadcasts of its proceedings. The current crisis provides an opportunity for it to experiment and see how it goes. My strong sense is that it will discover, as have other courts around the country, that it is no problem at all.
At least since Bush v. Gore in 2000, the Supreme Court has on occasion, in high profile cases, allowed broadcasting of the audiotapes of oral arguments immediately after they conclude. C-Span has taken advantage of this opportunity, broadcasting the audiotapes as soon as they become available and showing still photographs of the justices and advocates as their voices are heard. But if people can hear the tapes just minutes after the arguments conclude, it is impossible to see the harm in allowing them to see the proceedings live just an hour earlier.
One concern is that broadcasting arguments will change the behavior of lawyers and justices. Perhaps that concern has some basis in trial courts where there is worry about the effect of cameras on witnesses. Even there, however, the experience of many jurisdictions with cameras in the courtrooms and many studies refute any basis for concern.
But especially in the Supreme Court, there seems little basis for worry. The lawyers, who are focused on answering intense questioning from the justices, are unlikely to alter their arguments to play to the cameras. Besides, anyone who has witnessed a Supreme Court argument knows that the justices are firmly in control of the proceedings. Justices and lawyers know that the arguments, especially in high profile cases, are going to be extensively covered in the media and audiotapes will be publicly available.
In this context, there is no reason why live broadcasting will change behavior.
I believe that the court’s credibility only will be enhanced if more people see the justices at work. Anyone who watches a Supreme Court argument will see nine highly-intelligent, superbly-prepared individuals grappling with some of the nation’s hardest questions. The public will see, too, that there are no easy answers to most constitutional questions and that there are usually compelling arguments on both sides. That can only increase the public’s understanding of the law.
So much is changing to adapt to the risks from the coronavirus pandemic. The Supreme Court needs to change, too. If the COVID-19 threat persists, the court needs to use technology to allow oral arguments to continue.
This op-ed is crossposted from the Sacramento Bee.