It took an international pandemic to drag the Supreme Court a bit further into the internet age, but the justices on Monday will hold oral arguments for the first time via telephone so that anyone will be able to hear them live.
The COVID-19 outbreak shuttered the Supreme Court building and then delayed oral arguments in March and April. With no clear end to social distancing or when it will be safe to reopen, the famously tradition-bound high court decided to hold two weeks of oral arguments with the justices and counsel all participating remotely.
Among the cases: The Trump administration’s new rules on exceptions to the contraceptive coverage mandate in the 2010 health care law on Wednesday; and President Donald Trump’s personal challenge to congressional subpoenas for his financial and tax records from Mazars USA and Deutsche Bank on May 12.
The novelty of the live high court action will certainly bring more interest for the first case under the new format, the U.S. Patent and Trademark Office v. Booking.com, about whether online companies with a generic term plus “.com” can get trademark protection.
What happens could determine whether live Supreme Court audio is here to stay — or more likely, not.
Here’s how to listen, what to listen for and what else might be different when the justices trade their robes for the phones:
The courtroom usually fits about 500 people for an hour of argument per case, so the cases with the highest interest generate lines for the public outside the courthouse sometimes days before it goes into session.
But with the live audio feed of arguments going out to news media — and at least C-SPAN committed to airing that feed on television, radio and online at C-SPAN.org — the potential audience is much bigger.
C-SPAN, which has broadcast congressional action since 1979, says that “will allow them to be heard via anyone’s cell phone.” The photo and name of the justices and counsel will accompany the audio feed on television, while names will be provided on radio.
Court TV also announced it will air the arguments, and used a 30-second commercial to ask viewers to “take part in this historic televised event.”
The justices not only will have to grapple with not being able to conduct the arguments face to face, but with new procedures for asking questions to the lawyers.
Gone will be the freewheeling discussion where any justice can interrupt at almost any time with a question, the justices can ask follow-ups to questions from other justices, or even jump in with a question that seems more aimed at figuring out the views of the other justices or influencing those views.
Instead, after the arguing lawyer has two minutes uninterrupted, Chief Justice John G. Roberts Jr. will have the opportunity to ask questions. Then, each of the other justices will have a turn, going in order of seniority.
“There can be a decent amount of focus in an oral argument, but the structure that the courts have been forced to adopt by this format really gets in the way of those things,” Tom Goldstein of the Goldstein & Russell law firm, who has argued more than 40 cases before the Supreme Court, said at a panel discussion hosted by the Federalist Society.
More junior justices will have a more difficult time shaping the oral argument, justices might not get to ask a question because of time constraints, and the one-at-a-time format will break up lines of discussion, Goldstein said.
“I think this will be extremely difficult to adapt to because it’s something that they’ve been doing in a certain way for a long time,” Goldstein said. “And I think the justices will find oral argument materially less useful than they otherwise do.”
The arguments will test the justices’ well-worn defenses of why streaming audio 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.
Just wait until that meets Twitter over the next two weeks — especially in the Trump case.
Carrie Severino, a former law clerk for Justice Clarence Thomas, said that it will be hard to tamp down that real-time commentary, since members of the news media and others already leave partway through the arguments in high-profile cases to make that commentary.
“I think the biggest concern though is people not wanting justices to be playing to that public view rather than actually use the arguments as a legal exercise,” Severino said.
Goldstein, who is also co-founder and publisher of the SCOTUSblog website that provides insider coverage of the court, said he suspects the Supreme Court’s public information office will watch live blogs and report back to the court what the process looked like.
What happens during the telephonic arguments could determine how much the justices want to keep livestreams, even after the health threat from the outbreak lifts.
“I think that part of it will depend on how poorly that process goes, either technologically or with people overreacting to the oral arguments in real time,” Goldstein said.
Other appeals courts across the country have done livestreamed telephone hearings, and they haven’t always gone smoothly. There were a few glitches at the debut of telephonic oral arguments at the U.S. Court of Appeals for District of Columbia Circuit last month.
One judge’s audio dropped off during her questioning, another judge said his call dropped for five to six minutes and added that it was “kind of a mess,” and an attorney asked at one point whether he was still on because he was “getting weird noises,” The National Law Journal reported.
Last week, during another D.C. Circuit telephone argument, some noises briefly interrupted the answer from the attorney.
“One of our judges has unmuted himself and we can hear his comments, so I think that’s just a technical glitch,” Judge Thomas Griffith told the DOJ lawyer.
A minute later, Chief Judge Sri Srinivasan added: “And if I could make sure that the judges have their lines muted.”
Severino said the justices’ instinct will be to go back to not having livestreams because the court is a very conservative institution in terms of its procedures and policies, and Roberts likely would want the buy-in from all the members of the court.
“My understanding is that there are several holdouts who really don’t want to see those changes, especially in terms of livestreaming the arguments,” Severino said.
The telephone arguments will start at 10 a.m. Monday to Wednesday and May 11-13.