May 7, 2020; CNN and The Verge
This past week, a new day dawned for the Supreme Court of the United States and it made many court watchers a bit giddy. The proceedings of the court were broadcast live for all to hear.
Anyone who has ever desired to attend a US Supreme Court hearing quickly learns that there are only about 100 public seats and that the line for those seats often forms days in advance (so bring your sleeping bag or plan to pay someone to hold your place in line). And while an audio transcript of each hearing is released a few days afterwards, it is just not the same as being there or hearing things first-hand.
So, due to the closures caused by the coronavirus, change has come, reluctantly, to the court. Those who follow the court wonder just what this will mean for the outcomes of cases being heard in this way. Will this change the democratic process somehow? Pundits abound on these issues as they dissect the process and the first few cases heard in this way. (This is the United States, after all.) Although the changes were large, not all of them were visible.
First, it’s important to know that the court is a very formal place—until the justices begin to question the lawyers presenting the cases. Then, it becomes almost a free-for-all, with justices interrupting each other and the lawyers with questions and arguments. We know this from audio transcripts of past hearings, but with live broadcasts, there were concerns about how this could be managed, and Chief Justice Roberts worried about the dignity of putting it out for live broadcast. A new format was put in place to remedy this, and according to CNN, this could affect the outcome of cases.
Under this new system, each justice, based on seniority, has a few minutes to question each side without interruptions from other justices. The Chief Justice strictly enforces time limits and cuts off questions midstream. In the former system, this was where the justices could show their positions and try to persuade colleagues. In this format, this led to limited questioning, with no exchange among justices. When Justice Elena Kagan was trying to pin a lawyer down on a question related to contraceptive coverage under the Affordable Care Act, she was halted mid-question due to timing. The questioning then passed to Justice Neil Gorsuch, who was up next. This left many listening dissatisfied, and there was no time for a second round of questions.
One bonus to this new system was the active participation of Justice Clarence Thomas, who has largely remained silent throughout his entire term on the bench. When called upon, following the Chief Justice in seniority, he was prepared and asked a variety of questions. Apparently, Justice Thomas likes a system where he will not be interrupted.
For the most part, the technology worked for everyone. Justice Ruth Bader Ginsburg was able to use it from a hospital room, and all seemed to be able to be heard clearly. There were a few glitches with muting and unmuting, and the now-infamous sound of a toilet flushing on Wednesday, which will forever embarrass the Chief Justice. But “Flushgate” aside, the process did work in terms of technology, and some of the Justices even figured out how to keep their questions short and interrupt the lawyers so they could keep them on point and get more out of their limited time. Given practice with this process, they might further improve.
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One attorney, Roman Martinez, who argued a case this past week, spoke in anticipation of what he was about to encounter: “It is nice as an advocate to be able to know that you’ll be able to get the answer out to the justice’s question without being cut off by another justice. So, it does provide for a little bit more of a back and forth where the advocate can have some confidence that they can get an answer out.”
But Martinez would prefer the old system to this new one, stating, “It’s more of a free-flowing exchange—and you can kind of go from topic and concern to topic and concern in a more natural way.”
Right now, even with the limitations imposed by the Chief Justice, who is opposed to bringing video to proceedings, live audiocasting of Supreme Court hearings is a way to bring the public into the courtroom. We cannot see the facial expressions of the justices when they ask questions or hear responses, which might be very telling, but can rely on changes in vocal tone for a sense of how they are feeling. We don’t even know if they are wearing their traditional black robes; they could be attending the hearings in sweatpants! But no matter what, this is now a much more public event—and it happens live.
This also means it draws a plethora of live responses on social media. As arguments occur, court-watchers will be on Twitter, sharing comments and memes. This could take a bite out of the “dignity of the court” that so concerns Chief Justice Roberts when the court takes up the multiple arguments about President Donald Trump’s tax returns. According to the Verge, there is a very real chance of the president furiously live-tweeting commentary during the hearings or even publicly venting his frustration with specific justices, something he’s done in the past. This is exactly what Roberts fears the most for the court that will carry his legacy and represent what justice is for the citizens of this nation.
As many of us will be hunkering down to listen to another week of live broadcasts, it is worth thinking about the impact—the importance, role, and power—of the Supreme Court, and all courts for that matter, on our democracy. Writing for Slate, Mark Joseph Stern perhaps said it best:
The court presents itself as a majestic body of immense authority because, on some level, its members are insecure about their ability to exercise any authority at all. [The court’s] tiny police force cannot march into Congress or state legislatures to enforce a decision. The chief justice cannot order the president to send in the National Guard if a governor defies a ruling. There is simply no constitutional mechanism for implementing a Supreme Court order. [The court] derives its power from the rest of America’s willingness to abide by its decisions. Its capacity to turn majority opinions into the law of the land is a magic trick. Right now, it is working: A 2019 poll found that the public mostly believes the court has the right amount of power and trusts the justices to wield it in the public’s best interest. If we stop believing in that magic, however, the court will effectively lose the ability to say what the law is.