The U.S. Supreme Court has been making history lately, and not by the usual method of issuing decisions in important constitutional cases. The coronavirus pandemic has prompted the justices to break with tradition in some big ways.
The first was to hear oral arguments remotely, so that they and the contending lawyers don’t have to travel to the courtroom in Washington, D.C. Like many other people who once worked in offices, the justices have been doing their jobs from home. They apparently concluded this option would work fine not just for reading briefs and doing research but also for grilling attorneys as they present their cases.
The first case, heard on May 4, was a trademark dispute involving the travel website Bookings.com. The justices and lawyers called in to the teleconference and the business unfolded more or less as usual. The marble columns at the building’s main entrance did not crumble from the shock waves — despite one embarrassing moment when a toilet was heard flushing. Let’s all pretend “the flush heard around the country,” as a CNN headline dubbed it, never happened, shall we?
The new format did make a difference: Instead of jumping in helter-skelter to interrupt the attorneys and one another, the justices politely took turns asking questions. The more orderly proceedings induced Clarence Thomas, who sometimes goes years without speaking at these sessions, to ask several questions.
The justices also approved another change: allowing the live broadcast of oral arguments. In recent years, the court has made audio recordings available afterward. This, however, was the first time that Americans could hear cases argued live. Since then, they have gotten to hear several more. For anyone with an interest in the Supreme Court, which includes some journalists, it’s an exciting change.
It should allay any fears the justices had about live broadcasts. “Remind me why they haven’t been doing this all along?” Gabe Roth of Fix the Court, an organization that advocates more openness, asked the Los Angeles Times.
Maybe it will encourage the court to give Americans an even better picture of its work by admitting video cameras, as soon as the court goes back to hearing cases in person. If hearing is good, seeing and hearing is better.
The justices have long rejected this option. During his time on the court, David Souter said, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.” The late Antonin Scalia feared brief video clips would be used on news programs in ways that would “miseducate the American people.” Elena Kagan worries that “we might filter ourselves in ways that might be unfortunate.”
The same objections could be raised about audio, which has become routine. We think the court as well as the public would benefit from the greater understanding that would come from letting ordinary people watch arguments as they happen. On occasions when major cases are decided, plenty of Americans would tune in to see John Roberts or Ruth Bader Ginsburg summarize the court’s opinion — or their dissent.
Sen. Dick Durbin and Rep. Mike Quigley, both from Illinois, have repeatedly introduced bills to require the court to allow all open sessions to be televised. “Supreme Court rulings affect the lives of every American from every ZIP code in the country,” says Durbin. “Yet, Supreme Court arguments and decisions can only be watched by a few hundred Americans who are able to obtain a seat in the courtroom and view them live.”
Maybe the experience with live audio will make the justices realize that there is nothing to fear from video. The work they do is a vital part of our system of government, and every American should have the opportunity to see how they do it.