Supreme Court Bows to the Moment With First Streaming Arguments

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(Bloomberg) -- The U.S. Supreme Court is about to go where it has never gone before. And the country will get to listen in live.

The court will hear its first-ever argument by telephone Monday, opening a two-week remote session that includes disputes over subpoenas for President Donald Trump’s financial records. The justices are allowing live audio broadcasts, another novelty for a court that under less-dire circumstances treasures its precedents and traditions.

The 10 phone arguments, a concession to the coronavirus outbreak, will offer a public window into the court’s operations at a time when they are far from normal. The justices will be using unfamiliar technology and a new questioning format, while perhaps wondering how it will be perceived by a live audience that could include a tweeting president.

“The livestreaming of the arguments will give the public much more access to the court’s proceedings,” said Tom Goldstein, a Washington lawyer who founded scotusblog.com, which tracks the court. “But the irony is that the court will be operating in a way that is very different from usual.”

Here’s what to expect over the next two weeks:

Besides the Trump cases, what else is on the agenda?

The cases range from technical to blockbuster. The first one, set for Monday, concerns whether businesses can get federal trademark protection for website names, such as Booking.com, that center on a commonly used word.

The stakes get higher as the session goes along. On Wednesday, the court considers the Trump administration’s bid to create a sweeping religious and moral exemption from the Obamacare requirement that employers and universities offer free birth control through their health-care plans. That same day, the court weighs the constitutionality of the federal ban on robocalls to mobile phones.

On May 11, the court considers giving religious organizations a bigger exemption from discrimination suits. The next day are the two Trump financial-records cases -- one centering on House subpoenas and the other on subpoenas from a New York state grand jury.

Finally, the court will hear two cases on May 13 involving the Electoral College, the body that formally selects the president. At issue is whether states can stop “faithless electors” who try to cast a vote for someone other than the candidate who won their state’s balloting.

What time are they, and how do I listen?

Arguments start each day at 10 a.m. Washington time. Each argument lasts an hour, with each side getting 30 minutes. On Monday and Tuesday the court has only one case. On Wednesday of next week and Monday, Tuesday and Wednesday of the following week, the court is hearing two cases, so the second one will start at 11 a.m.

C-Span plans to air all the arguments live, and other networks are likely to offer at least some parts of the sessions.

What will be different about the arguments?

The questioning will be more structured than usual. With each advocate, Chief Justice John Roberts will have the first chance to ask questions, followed by the associate justices in order of seniority. If time remains, justices may get a second chance to ask questions.

Ordinarily, the arguments are a bit of a free-for-all. Each lawyer gets a minute or two to make opening remarks, but then the justices start asking questions, in any order -- sometimes building on one another’s queries or jumping in to help a floundering lawyer. A good argument can resemble a conversation between the lawyers and justices, or perhaps just among the justices.

“It’s going to be very difficult if not impossible for a lot of that stuff to happen next week,” said Elbert Lin, an appellate lawyer with Hunton Andrews Kurth and former law clerk to Justice Clarence Thomas.

Speaking of Thomas, he almost never asks questions at arguments -- in part, he has said, because he thinks his colleagues ask too many. But some of his former law clerks say the new format could prompt him to break his silence.

“Having a more organized system might mean that he doesn’t think the oxygen is totally taken up,” said Carrie Severino, a former Thomas law clerk who is now chief counsel for the conservative Judicial Crisis Network.

What parts will be the same?

The questioning format aside, the court seems to be keeping what customs it can. In a press release this week, the court said the arguing lawyers will be put on the phone first before the justices join. Instead of emerging from behind the red velvet curtains of the courtroom, the nine will “enter the main conference call,” the court said.

Simultaneously, Supreme Court Marshal Pamela Talkin will open the session with the traditional cry of “Oyez! Oyez!” Roberts then will announce the first case and acknowledge the first lawyer, like he always does.

How are the lawyers adapting?

Lawyers are handling the session in different ways. Attorneys in the U.S. solicitor general’s office will don the morning coats they traditionally wear and argue from their conference room at the Justice Department.

Roman Martinez, who will argue against the robocall ban on behalf of the American Association of Political Consultants, said he plans to go to his office, in part because he has confidence in the technology there. Martinez, who will be making his ninth Supreme Court argument, said he has done two “moot court” practice sessions by telephone to prepare for a dynamic in which he won’t be able to see his questioners.

“Obviously, it’s a second-best solution,” said Martinez, a lawyer at Latham & Watkins in Washington. “I would rather be there in person. I think the justices would rather be there in person, and I think the government would rather be there in person. But moving forward with the argument in these circumstances is the right decision, and we will all make it work.”

Will the arguments indicate how the cases will come out?

Don’t count on it. Even under normal circumstances, the current court can be hard to gauge. Justice Anthony Kennedy’s 2018 retirement removed the court’s most frequent swing vote, a role that now shifts among the justices depending on the case.

Roberts now is often the pivot point, and sometime his questions provide a window into his views. But on two occasions -- the 2012 ruling that upheld Obamacare and the 2019 ruling that blocked a citizenship question on the census -- he changed his mind after the argument, according to news reports.

Kennedy’s successor, Justice Brett Kavanaugh, can also be difficult to read. He likes to play devil’s advocate, asking hard questions of both sides without tipping his hand.

The telephone session “is going to be even harder to predict because of all the other strange factors that are changing with the technology,” Severino said.

Why not do video arguments?

The Supreme Court moves slowly -- glacially, really -- and the justices have consistently resisted any camera coverage of arguments, despite pressure from members of Congress and the public. Not much has changed since 2006, when Roberts said television coverage might change the tenor of arguments.

“We’re going to be very careful before we do anything that we think might have an adverse impact,” Roberts said.

The justices won’t even be using cameras internally during the upcoming arguments. Like the lawyers, they won’t be able to see one another, Supreme Court spokeswoman Kathy Arberg said.

Is this all just temporary?

That remains to be seem. Whether livestreaming becomes a permanent Supreme Court feature will depend in part on “how poorly that process goes, either technologically or with people overreacting to the arguments in real-time,” Goldstein said.

The bigger question may be whether a lingering coronavirus threat will force the justices to hold telephone arguments again when they convene for their next term in October. The court’s decision to schedule so many remote arguments this month -- rather than just a few time-sensitive cases -- suggests the justices may be bracing for that possibility, Goldstein says.

Two justices -- Ruth Bader Ginsburg and Stephen Breyer -- are in their 80s and four others are 65 or older. Older people are at increased risk of dying should they contract the coronavirus, and Justice Sonia Sotomayor’s diabetes puts her at elevated risk as well.

“All of the reopening stuff is premised on the idea that people who are at most risk for Covid still need to take care,” Severino said. “And that unfortunately includes most if not all of the members of the Supreme Court.”

©2020 Bloomberg L.P.

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