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Justices Yet to Decide on Live Audio Kept in Appeals Courts

Sept. 15, 2022, 6:47 PM

The US Supreme Court has yet to reveal whether livestreaming will continue even as Chief Justice John Roberts signaled that its courtroom will reopen to the public next month.

Eleven of the 12 regional federal appeals courts as well as the Federal Circuit continue to let the public listen to real-time audio of proceedings.

The exception is the US Court of Appeals for the Eleventh Circuit, where proceedings could soon be of particular public interest as litigation surrounding documents seized from former President Donald Trump’s Mar-a-Lago estate in Florida makes its way through that jurisdiction.

“It would be such a tragedy to go backwards,” said Fix the Court’s Gabe Roth, referring to the high court’s pandemic-prompted streaming.

Just the D.C. Circuit and the Ninth Circuit regularly provided a live feed of arguments before the pandemic. The San Francisco-based Ninth Circuit goes a step further, offering live video for arguments. Other circuits—as well as the Supreme Court—followed suit with live audio when Covid forced many courts to go remote or limit public access in 2020.

At a Sept. 12 appearance in New York, Justice Elena Kagan said she expects the justices to discuss whether to continue livestreaming when they gather for the first conference of the new term later this month.

Kagan said she “personally would prefer to keep the livestreaming” during a July appearance at the Ninth Circuit’s judicial conference in Montana.

“I think the livestreaming has worked very well and we’ve seen no problems with it, but I only get one vote of nine,” Kagan said.

Roberts told a Tenth Circuit conference on Sept. 9 that “the public will be there to watch us” when the court starts its new term without making any reference to live audio.

Eleventh Circuit

The Eleventh Circuit is still operating under a pandemic-era order from Chief Judge William Pryor that said, among other things, oral arguments not conducted in open court will be livestreamed. That suggests arguments open to the public won’t be.

“I cannot opine on whether the Court might change that policy in the future,” Kate Adams from the Eleventh Circuit executive’s office said in an email.

Decisions to maintain live audio come as several courts have begun to allow the public to again attend arguments in person. The Second and Seventh Circuits, based in New York and Chicago, respectively, were among the courts that allowed the public back into oral arguments in September for the first time since the start of the pandemic. Both indicated they would continue to provide live audio.

Pressure from lawmakers and advocates to add live audio and video in federal courts existed long before the pandemic forced change. Bipartisan legislation to give presiding judges in federal courts, including the Supreme Court, discretion to allow television cameras in courtrooms has been reintroduced in Congress for over a decade. Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) also wrote to Roberts in 2020 urging him to continue making live audio available after the pandemic.

Some justices have expressed concern in the past for allowing cameras in the courtroom, arguing that advocates might grandstand for a large audience.

Roth said he expects members of Congress will press Roberts and other leaders in the federal judiciary to make live audio permanent during the semiannual judicial conference meeting next week.

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com