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INSIGHT: Two Former SCOTUS Law Clerks Call Dial-in-Arguments a Success

May 13, 2020, 8:01 AM

May 4 marked a historic first for the U.S. Supreme Court: The advent of telephonic oral arguments, live audio streaming of those arguments, and a massive shift for justices and advocates alike at an institution not known for its technological innovation.

Of course, the Supreme Court is not the first court to adapt to the realities of Covid-19 and social distancing by abandoning in-person arguments. In the past few weeks alone, our colleagues have participated in court hearings and taken depositions by video conference and have argued cases in the federal courts of appeals over the phone. But few close observers—these authors included—would have pegged the Supreme Court as a likely trendsetter.

The Roberts Court (so named for the current Chief Justice John Roberts) has long resisted calls for live audio for oral arguments, or even same-day release of audio recordings. The apparent concern has been that the broader audience—much larger than the roughly 165 people who can squeeze into the public gallery on an argument day—might undermine the proceedings in big and small ways.

Attorneys, and perhaps even justices, could play to the audience or compete for sound bites, detracting from the focused questioning and serious advocacy that typifies Supreme Court arguments. Even the fiercest advocates of transparency would agree it would be a shame for arguments at the highest court to resemble a partisan congressional hearing.

Now it’s a new reality, and the early returns are positive. Yes, there have been the inevitable technological snafus, with justices or advocates forgetting to unmute when it is their time to speak—or worse, forgetting to mute when their questioning is done. But both bench and bar have demonstrated impressive adaptability in these less-than-ideal circumstances.

Where oral arguments would typically involve rapid-fire, popcorn-style questioning from any of the nine justices on the bench, the court has announced and followed new procedures for telephonic argument, with each justice asking questions in turn, in order of seniority.

Unprecedented Public Access

More importantly, the broader public has been given unprecedented access to Supreme Court arguments broadcast live online and on C-SPAN—a level of access previously reserved for members of the Supreme Court bar, the press corps, and the justices’ law clerks. While arguments are technically open to the public, space is limited and demand can be high. When a high-profile case is set for argument, members of the public will line up days in advance (or pay someone to do it for them) to secure a spot. At times the line wraps around the block.

It is still early, yet it is hard not to be optimistic. While the format has changed, the substance and tenor of the arguments have not. Cases in the first week of telephonic argument have covered everything from trademark law (e.g., whether the addition of “.com” to a generic term creates a protectable trademark) to so-called “hot button” issues (e.g., the “conscience exemption” to the Affordable Care Act’s birth-control mandate and third-party subpoenas for President Trump’s financial records). There has been no obvious grandstanding. Instead, the same serious work of the court has continued, with increased visibility that just might strengthen engagement with and respect for the institution.

Indeed, the advent of telephonic argument has already increased participation in oral argument by the justices themselves. Justice Clarence Thomas, who famously asks questions only rarely, has participated in every argument session when his turn has come. On May 6, Justice Ruth Bader Ginsburg participated telephonically—and energetically—while recovering at Johns Hopkins Hospital in Baltimore after treatment for a benign gallbladder condition.

Don’t Expect This to Continue Post-Pandemic

Will telephonic arguments continue once the current pandemic recedes? Almost certainly not, and for good reason. There is something powerful about presence and context, and arguing in the well or questioning behind the bench of the Supreme Court simply cannot be replicated by a speakerphone in a participant’s home or office.

Even for the public, few things reinforce the weight and import of the court’s task than the grandeur of the building and courtroom themselves—or the moment when the marshal gavels the court to order and delivers the traditional “cry.”

Does the court’s embrace of new technology during the pandemic suggest that video cameras might soon come to 1 First Street? In our view, highly unlikely.

For the Roberts Court, live audio is already an ambitious step—an experiment that may or may not endure beyond the crisis. But video only heightens the grandstanding concerns that have long posed an obstacle to live audio, with added security risks, including that protesters and other attention-seekers could try to disrupt the proceedings to get on camera and seize their “15 minutes of fame.”

But will at least some lessons be taken from this current moment? Almost certainly yes, even if the only lesson is that the court can adapt when the need arises.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Alex Harris and Madeline Lansky are associates at Bartlit Beck LLP in Chicago. Harris served as a law clerk to then-Judge Neil Gorsuch on the Tenth Circuit Court of Appeals and to Justice Anthony Kennedy. Lansky served as a law clerk to Judge William Pryor on the Eleventh Circuit Court of Appeals and to Justice Clarence Thomas.