Could coronavirus change whether the Supreme Court streams proceedings?

Justices still routinely deny media requests for audio to be released same day as major cases

Tourists take photos on the steps of the U.S. Supreme Court on Thursday. (Bill Clark/CQ Roll Call)
Tourists take photos on the steps of the U.S. Supreme Court on Thursday. (Bill Clark/CQ Roll Call)
Posted March 13, 2020 at 1:14pm

The Supreme Court has steadfastly refused to open up the courtroom to live audio or video streaming oral arguments or opinion announcements — could the global coronavirus pandemic finally change that?

The famously cloistered high court on Friday closed the building to the public “until further notice” because of the highly contagious virus that is particularly dangerous to older people. But the justices have not announced how it might alter its typical arrangement for the two-week session of oral arguments set to start March 23.

[Courts mull closures and risks amid coronavirus pandemic]

Gabe Roth, the executive director of the nonpartisan group Fix the Court that advocates for accountability and transparency, said the closure was the right call given the crowds that gather in and around the building and the advanced age of several of the justices.

But Roth said if the need for such “social distancing” measures continues to keep the public from the courthouse, the justices should at a minimum permit the public to listen to a livestream of argument audio from the court’s website.

“Live audio is the smartest way to balance the now-competing concerns of public safety and public access,” Roth said.

And the Supreme Court on Thursday got at least one offer: C-SPAN Networks tweeted that it would provide all those arguments live and archive them online.

Critics of the court’s no-livestreaming policy, including some members of Congress, have long argued the Supreme Court has the technology to do it. They point to the audio piped into a room for lawyers to listen to the argument and the livestreaming of a memorial for Justice Antonin Scalia in 2016, as well as the digital recordings that are posted online days later.

The justices still routinely deny requests from media for that audio to be released the same day as arguments in major cases.

By comparison, the U.S. Court of Appeals for the District of Columbia Circuit has streamed all its arguments online since 2018, and other state and federal courts have streamed audio without the collapse of the justice system.

For that reason, the Supreme Court is one of the hottest tickets in Washington for oral arguments on major cases, and sometimes a line for public entry to the courtroom forms days ahead of time for just a few hundred seats.

The public interest will be as intense as ever on March 31, when the justices are slated to hear President Donald Trump’s personal challenge to congressional subpoenas for his financial and tax records from Mazars USA and Deutsche Bank.

The COVID-19 outbreak raises the possibility that the public could be shut out — and maybe even some or all of the press, too — depending on the policies they put in place. Such an arrangement would draw howls from Roth and others who say the public should be able to watch its government at work.

The justices have not announced what they will do. They could simply go the way that the Masters golf tournament and the Boston Marathon did on Friday and postpone, particularly when in-person arguments would require attorneys to travel to Washington from across the nation.

And the timing of when it will be safe to allow the public back into the building is unclear at best. The Supreme Court, steeped in traditions unlike any other branch, rarely deviates from its schedule that includes oral argument sessions through April and then a flurry of decisions before the end of the term at the end of June.

University of Texas law professor Steve Vladeck, who is set to travel from the Lone Star State to argue the first case March 23 before the high court, offered what he called a “modest proposal.”

The court usually hears two cases per day, back to back, but the second case could be moved to the afternoon, Vladeck said. The public and lawyer sections could be empty while the press is allowed but spread out in the courtroom.

And, “Streaming (or, at least, same-day) audio,” Vladeck tweeted.

But appellate lawyers are skeptical either of those would happen if the court moves forward with oral arguments.

“I think streaming is highly unlikely,” Sean Marotta, a partner at Hogan Lovells who is set to argue before the justices April 27. “Perhaps same-day audio, but when you think about the highly political cases coming up, I think the court will still be wary about giving the press access to audio that can run during the nightly news, which is the traditional argument against same-day audio.”

The justices have well-worn defenses of why streaming or television cameras in the courtroom would be harmful to their work. Lawyers would be tempted to grandstand to have their soundbite on the evening news, they have told Congress, or justices would filter their questions at the risk of being taken out of context.

Last month, House Judiciary Chairman Jerrold Nadler of New York and Democratic Reps. Hank Johnson of Georgia and Mike Quigley of Illinois introduced a bill (HR 6017) that would eventually force the Supreme Court’s hand.

A provision would require same-day audio for Supreme Court arguments and opinion announcements within one year, and live audio within two years.

Quigley, the chairman of the House Appropriations subcommittee that oversees the court’s budget, wrote Chief Justice John G. Roberts Jr. on March 9 to encourage livestreaming to ensure the public’s right of access to court proceedings. He did not mention the coronavirus outbreak as a reason.

But he did cite Roberts’ comments, at the close of his time presiding over the Trump impeachment trial, that invited lawmakers to observe oral arguments at the court.

“I encourage you and your fellow justices to extend that invitation to the American people in ways that technology now make commonplace,” Quigley wrote. “The country, the Constitution, and the judiciary would be better for it.”

Roth said he thinks the outbreak will strengthen support for such legislation, since the most likely scenario is no livestream and no members of the public in attendance.

“I'd expect a public outcry that's even louder than when the justices refused to livestream the Affordable Care Act or same-sex marriage cases,” Roth said.