As the coronavirus pandemic has forced Americans across the country to work from home, antiquated rules and procedures are having devastating consequences for those with business before the U.S. Supreme Court. Instead of joining the rest of the country in moving operations online, the court announced April 3 that its April arguments, like those scheduled for March, have been postponed. Indefinitely.
The court has long resisted calls by transparency advocates to livestream audio or video of oral arguments and opinion announcements, preventing the vast majority of the country from observing its operations.
But now the problem is more acute. No virtual access means the court is no longer performing one of its fundamental functions. While the justices will continue to hold internal conferences on cases that have already been heard, cases that have yet to be argued stand in limbo.
In some cases, delayed access to the courtroom is tantamount to a finding for one party over the other. Take the case involving President Trump’s tax returns: after a lower court ordered two banks to turn over the president’s financial records to Congress in December, the Supreme Court issued an emergency stay. Arguments were scheduled for March, but postponed in light of the coronavirus. (The cases are Trump v. Vance, 19-635; Trump v. Mazars, 19-715; and Trump v. Deutsche Bank, 19-760.)
If the court does not hear those arguments before November, Congress will not be able to review the president’s records, or learn why the lower court may have erred, in time for the election.
An emergency stay, not a decision based on briefs and oral arguments, will be the law of the land. Partisans on both sides should want this issue resolved so the American people can make an informed choice come election time.
Another example comes from pending immigration cases. In recent months, the justices have “temporarily” allowed the Trump administration to implement two controversial policies that were rejected by lower courts:
- The public charge rule, which critics say will deny visas to poor immigrants and discourage them from obtaining health care (Wolf v. Cook County); and
- The Migrant Protection Protocol, or so-called remain in Mexico policy, which bars asylum seekers entry until they prevail in immigration court (Wolf v. Innovation Law Lab).
Both these policies have immediate consequences for immigrants. The public charge rule will likely cause significant confusion and result in uneven and unequal enforcement, and the MPP leaves asylum seekers in harm’s way, at risk of violence and even coronavirus exposure.
It is possible that the Supreme Court will overturn one or both of these policies. After all, lower courts ruled against both of them. But it could be months before the court reopens to even consider these actions. In the meantime, “temporary” and “emergency” orders may ultimately prove to have permanent and lasting effects on the lives of migrants at the border and immigrants seeking visas.
The Tech Is There
Luckily, there’s a better way. Of course, the justices should not be going in to work, as many of them have health issues that place them at significant risk if exposed to the virus. The building itself should certainly not be open to the 400 or so visitors who typically attend oral arguments. But in the age of technology, necessary public health measures should not stand in the way of the court’s business.
Courts across the country, like many public and private sector offices, have responded to the pandemic by moving operations online. Several state supreme courts and federal appeals courts have moved to teleconferencing in recent days. The justices themselves have been using virtual platforms to conference. Allowing attorneys to argue by teleconference, and the American people to watch by video, would present no great technological challenge.
Only the court’s reluctance to modernize stands in the way of a full slate of arguments and decisions on this term’s time-sensitive cases. Without virtual access, the appellate process will be unnecessarily curtailed in cases that are in dire need of resolution.
It’s time for the justices to get out of their comfort zone—and into the 21st century.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Dylan Hosmer-Quint is a research associate with Fix the Court, a national, nonpartisan organization advocating for transparency in the federal judiciary.