The Justices Take a Landmark Step. Unwillingly.

Mark your calendar. Beginning May 4 and ending May 13, the Supreme Court of the United States will make history. It took the coronavirus pandemic to do it, but over six dates the Court will hear oral arguments on ten cases, and the people of the United States will be able for the first time to hear those arguments as they happen.

This is happening because the Court, like most of us, is practicing Covid-19 social distancing protocols, with the justices and staff working mostly from their homes. The Court first delayed these arguments, then decided to hold the hearings via teleconference.

The arguments would normally be open to the lucky two hundred people who can fit in the courtroom. Members of the public often wait overnight in the hope of getting a seat for a case of major interest. I’ve sat in that audience and I can tell you it is a very impressive and inspiring experience.

Now, with no public audience possible, the Court apparently felt trapped. It is making the live audio feed of the arguments available to the public and media. C-Span is expected to carry the history making event live.

It is amazing that it has taken this crisis to get the Court to allow live transmission of its public hearings. And of course it falls far short of the video transmission many, including this reporter, have been demanding for years.  For reasons I have never been able to understand, the Court has refused to allow broadcasters to transmit the PUBLIC hearings of OUR Court. What are the nine Supreme Court Justices afraid we’ll see?

Having watched live telecasts of some extremely controversial trials where the judge clearly lost control of the proceedings, I can see the wisdom in restricting or banning telecasts at the trial level. There are witnesses and juries who can be compromised and intimidated. And there can be lawyers who decide to grandstand for a television audience.

But none of these factors apply at the appellate court level. At least they shouldn’t. There are no witnesses. There are no juries. At the Supreme Court, the highest appellate court in the land, lawyers are specially admitted to practice and that is considered one of the highest achievements of a legal career. Grandstanding by members of the Supreme Court Bar, or the justices themselves, does not seem likely.

There was also a time when television required big, bulky cameras and bright lights. Those times are long past, as anyone video conferencing with a decent webcam today can attest. The Supreme Court, just like the Senate and the House of Representatives, could install cameras which would be practically unnoticeable, and control the feed out from the courtroom.

I generally do not link to other web content which is behind a paywall, and Blomberg Law usually is. But this story appears to be open to the public, at least at this writing. The story by Bloomberg’s Kimberly Strawbridge Robinson is a great guide to the ten cases to be argued and I highly recommend it.

The cases include Donald Trump’s refusal to turn over personal financial information subpoenaed by the House of Representatives, Trump v. Mazars and the Attorney General of New York, Trump v. Vance (Tuesday, May 12); the Constitutionality of a law limiting “robocalls,” Barr v. American Association of Political Consultants, Inc. (Wednesday May 6); and a state’s right to punish Electoral College members who fail to vote as required by state law, Chiafalo v. Washington, (Wednesday May 13).

Will this experience lead to a permanent change in policy at the Supreme Court? I’m not holding my breath. But I am keeping my fingers crossed.

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