Supreme Court Streams Oral Arguments Live For The First Time (Thanks To The Pandemic)

Legal Issues

from the about-freaking-time dept

For over a decade now, we’ve been saying that the Supreme Court should absolutely stream its oral arguments live via the internet — and for all that time the Supreme Court has rejected the idea. All of the Justices have always seems to be aligned in this view, though with very bad justifications. The two most frequently cited reasons are that (1) the public wouldn’t understand what was going on, and (2) that it might make the oral arguments more “performative” as the Justices (and perhaps some lawyers) would act differently for the cameras. Neither of these arguments makes much sense.

If people just wouldn’t understand — well, it seems like that would be a very educational opportunity. Having the video of the arguments would allow for more people to learn about our justice system and how it works, and for experts to step in and teach people. As for the “performative” concern, that also seems silly. Are the Justices really arguing that after working their way up through the ranks as judges for decades, that they’ll suddenly toss away all of their solemn and careful approach to justice because the cameras are on? If so, they don’t belong on the Supreme Court. And, of course, many other courts, including the Appeals Courts that these judges came from, will stream oral arguments live on the internet, and there’s been little to no evidence that it suddenly caused the judges to start tap dancing for the cameras.

Either way, with the pandemic forcing the court to shift to operating remotely, today for the very first time, the Court heard arguments telephonically and agreed to stream it live online for anyone to listen to (initially there had been talk that they would only stream it to “journalists” which raised a number of 1st Amendment issues on its own — and eventually the decision was made to just make it accessible to everyone). Amusingly, when asked, many Supreme Court lawyers apparently said they’d still stand up while making their arguments, as if at the lectern in the Supreme Court (as someone who works mostly at a standing desk and prefers to do calls standing, I approve):

The lawyers we sampled, to a person, said they are more comfortable standing, or even standing at a lectern, as they usually do during oral arguments, even though nobody can see them.

Obviously, as you’ll note from the fact that “nobody can see them,” this is all being done by voice, with no video conferencing included. I’m not sure I understand the reason for that other than the same garbage excuses from above. Of course, as always, John Oliver’s Supreme Court dogs can be used to create your own video versions, if you so choose.

The one other major difference is that, while normally Justices are allowed to jump in as they please and ask questions, because of the telephonic nature and the wish to avoid the overtalk and “no, you go first, I’ll wait” cross talk issues of a normal conference call, the Justices have decided to ask any questions in order of seniority, after Chief Justice Roberts asks any of his questions first. That seems kind of silly and weird, and you’d think that they could have at least come up with some sort of system that allows the Justices to “signal” that they have a question and then allow them to speak, but it should be noted that with this new system, Justice Clarence Thomas, who almost never asks questions during oral arguments, apparently spoke up quite a bit, asking as many questions as all the other justices.

Of course, as some experts are noting, this might also help deal with the problem of men — both the male Justices and male lawyers, frequently cutting off and interrupting the female Justices.

Either way, it’s great that they’re streaming these live, and they should go even further and (1) stream the video live, and (2) keep it going at whatever date they’re allowed to return to the actual Supreme Court building. Livestream Supreme Court Arguments Beginning May 4 : NPR

Filed Under: clarence thomas, oral arguments, scotus, streaming, supreme court