Supreme Court Faces Transparency Test After Livestream Success

June 5, 2020, 8:50 AM

Reflecting on their historic livestream experiment, U.S. Supreme Court justices might worry that it went too well.

The justices have long-shunned any technological encroachment on their in-person argument sessions. Now, fresh off of their lauded live-audio debut in May—prompted by coronavirus social distancing measures—they’re left with little excuse not to continue the practice, especially when they return to the bench.

Seventy percent of Americans surveyed support continuing it after the pandemic is over, according to a poll conducted on behalf of Supreme Court transparency watchdog Fix the Court.

Citing the survey, Senate Judiciary Committee members Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) renewed their pressure for change. They recently urged the court in a letter to Chief Justice John Roberts to make permanent its recent pandemic-inspired transparency efforts by livestreaming all arguments starting next term in October.

Yet it’s far from clear that the notoriously cloistered court will keep sharing its work in real time with the public, particularly when things get back to normal. Public access to the grandiose courtroom is limited, and seats can be notoriously hard to come by.

Grassley and Leahy also called for cameras in the courtroom like they face in the Senate. Such an advancement, which has for years been desired by advocates and rejected by the justices, is still a long-shot.

But the pandemic could have the effect of at least normalizing the real-time—or at least same-day—release of argument audio, something that might seem unremarkable to the casual observer, but would be a major development in the court’s history.

No Way Back?

“It took a pandemic for us to get live access, but I don’t see how the Court goes backwards,” said Amir Ali, deputy director of the Supreme Court and Appellate Counsel Program at the MacArthur Justice Center.

“Livestream audio has encouraged thousands of people across the country to tune into the Court’s public hearings,” Ali said. “We have our proof of concept. How could one conclude it’s in the public interest to restrict live access to the fifty earliest risers located in Washington, D.C.?”

The problem for transparency advocates is that’s not the way the court looks at it.

The court hasn’t offered an official explanation for its practices and had no comment for this story. But in parrying attempts to get cameras in the courtroom, individual justices have expressed concerns about being taken out of context on the news or individuals playing to a wider audience.

That didn’t happen during the telephone arguments in 10 cases in May, with audio broadcast on C-SPAN.

“There was none of the showboating or soundbiting that some had feared,” said Kannon Shanmugam, chair of the Supreme Court and Appellate Practice Group at Paul, Weiss, Rifkind, Wharton & Garrison LLP.

“Although the live audience wasn’t huge, it was many times bigger than it would have been in the courtroom,” he said.

Tens of thousands listened live while millions listened overall, according to data compiled by the Reporters Committee for Freedom of the Press.

When it comes to video, the justices’ defiant stance is perhaps best illustrated by 1996 congressional testimony from now-retired Justice David Souter. He said cameras would enter the courtroom “over my dead body.”

One might think that a law requiring the justices to broadcast their arguments could avoid seeking their permission. A pending House bill would require audio access, but even if it were enacted—similar efforts have failed over the years—the court might resist the law on separation of powers grounds, veteran Supreme Court journalist Lyle Denniston observed.

“The Senate doesn’t want the Supreme Court dictating when and how they hold public visuals of what they do, so I rather suspect that the court is not going to pay a whole lot of attention” to such commands from Congress, he said.

Quicker Audio at Least?

Even if cameras in the courtroom are still a pipe dream, the justices may have made the case for audio, whether they wanted to or not.

Before the pandemic, the court released its argument audio at the end of the week. Releasing it the same day of argument, even if not livestreamed, would mark progress. The justices have released same-day audio in a handful of high-profile cases over the years.

“One way for the Court to do it would be to release same-day audio on the afternoon of the arguments, as it currently does with transcripts,” Shanmugam said.

Another uncertainty is when the justices will next be on the bench to test whether transparency reforms are adopted. Arguments are finished for this term and nothing’s been said yet about how they will transpire in the next one.

“I think it’s unlikely that they’re going to have in-person arguments in the fall,” said Goldstein & Russell’s Sarah Harrington, who has argued 21 high court cases.

Until then, she said, “I would expect that they’ll continue doing what they’ve been doing. Maybe they’ll switch to video. My guess is that they would not do livestreaming if they’re on video, because they’re still so averse to being on camera.”

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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