Photo by Pavan Trikutam on Unsplash
Zachery Hullinger, Associate Member, University of Cincinnati Law Review
In response to COVID-19 and the accompanying restrictions on gatherings, the Supreme Court had previously postponed its March and April argument sessions.[1] On April 13, 2020, the Court took further action, announcing that it would hold oral arguments via telephone for ten sets of these cases.[2] These oral arguments are scheduled for early May, while the other postponed cases will reportedly be rescheduled for the fall, though the Court has not officially announced this.[3]
While oral arguments do not typically change the outcome of Supreme Court cases, they are the most public aspect of the process. The Court can, and does, decide cases without oral argument,[4] but has not opted to completely dispense with arguments as part of its transition to a remote work environment. The decision to hold oral arguments by phone does, however, fall notably short of the actions taken by some lower courts, which have provided for oral arguments via video conference.[5] While these alternative formats certainly present challenges for an unwieldy nine Justice panel—or eight, as Justice Thomas rarely asks questions[6]—these problems are no less present for phone calls than for video conferences. Phone calls do not address the issues of delayed feedback and, more importantly, present no visual cues to the parties to indicate when the Justices may ask questions. The real reason the Supreme Court opted for telephone conferences, rather than video, is not ease—it is reticence. The Supreme Court has been resistant to allowing any video of its oral arguments, out of concern that it would result in theatrics and decontextualized video clips.[7] The Court’s unwillingness to provide or even utilize video feeds of its arguments during these extraordinary circumstances indicate that public access to arguments will be limited to audio for the foreseeable future.
Also of note are the cases that the Supreme Court has selected for argument in May. The Court did not merely schedule those cases that had been delayed the longest, and some of the cases are quite time-sensitive. Colorado Department of State v. Baca concerns the constitutionality of state faithless elector laws. Had the case been postponed until the fall, it may not have been decided before the 2020 election. Also of potential import in the election are several cases involving efforts to obtain President Trump’s financial records.[8]
While the Supreme Court’s procedural responses may be the issue of the day, this new oral argument format ensures that the focus will soon return, as always, to the substance of the cases.
[1] Lawrence Hurley, Supreme Court Postpones April Oral Arguments over Coronavirus, Reuters (Apr. 3, 2020), https://www.reuters.com/article/us-usa-court-postponement/supreme-court-postpones-april-oral-arguments-over-coronavirus-idUSKBN21L2Z2.
[2] Adam Liptak, Supreme Court Will Hear Oral Arguments by Phone Because of Coronavirus, NY Times (Apr. 13, 2020), https://www.nytimes.com/2020/04/13/us/politics/supreme-court-phone-arguments-virus.html.
[3] Amy Howe, Court Sets Cases for May Telephone Arguments, Will Make Live Audio Available, SCOTUSblog (Apr. 13, 2020), https://www.scotusblog.com/2020/04/court-sets-cases-for-may-telephone-arguments-will-make-live-audio-available/.
[4] The Supreme Court can reverse cases summarily, without briefing or oral argument. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1 (2015).
[5] See Chuck Lindell, In a First, Texas Supreme Court Goes Live on YouTube, Statesman (Apr. 8, 2020), https://www.statesman.com/news/20200408/in-first-texas-supreme-court-goes-live-on-youtube.
[6] Adam Liptak, Clarence Thomas Breaks a Three-Year Silence at Supreme Court, NY Times (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/us/politics/clarence-thomas-speaks-supreme-court.html.
[7] Justices Scalia and Breyer both indicated their opposition to videoing oral arguments when they appeared before the Senate in 2011. See Considering the Role of Judges under the Constitution of the United States: Hearing Before the S. Comm. on the Judiciary, 112 Cong. 137 (2011) (where Justice Scalia said that “for every ten people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a 30-second outtake from one of the proceedings, which I guarantee you would not be representative of what we do.”).
[8] Nina Totenberg, Supreme Court to Hear Arguments by Telephone, Including on Trump’s Financial Records, NPR (Apr. 13, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/13/833292153/supreme-court-to-hear-arguments-by-telephone-including-on-trumps-financial-recor.
