Chemerinsky: SCOTUS should embrace technology reforms prompted by pandemic
Erwin Chemerinsky. Photo by Jim Block.
Unless there is an emergency case to be heard, oral arguments are completed in the U.S. Supreme Court for the October 2019 term. The court postponed its March and April oral argument calendars and rescheduled 10 of the cases to be heard in May in telephonic oral arguments. Ten other cases that had been scheduled for oral argument have been postponed until the fall.
Apart from the decisions—and most of the potential blockbuster rulings are still to come—it is a term that will be known for unprecedented changes in how oral arguments were conducted. Some of these reforms preceded COVID-19. Others were necessitated by the pandemic, which are likely to continue and which should continue.
Two minutes to speak without interruption
At the start of the term, the court announced a new practice: Each lawyer would be able to present a two-minute introduction without interruption. This allows the advocate to articulate the thesis of his or her argument and highlight the most important points before the justices begin their questioning.
I have listened to many of the oral arguments this term, and I found the two-minute introductions consistently to be clear and very well presented. I imagine that they often were helpful to the justices in focusing the questions.
As an advocate, I welcome this change and wish all appellate courts would adopt it. In my first Supreme Court argument, I got out five words before Justice Antonin Scalia interrupted me. I have had an appellate argument where as soon as I got to the podium, before I could say anything, questions began. I expect and desire questions but feel that my argument benefits from having a chance to present its central thesis before being interrupted.
I argued one case in the Supreme Court this term, and my introduction did not go as planned. I worked extensively on my two minutes of remarks, constantly refining it and repeatedly timing it with a stopwatch. But I was counsel for respondent and after hearing the petitioner’s argument and the justices’ questions, I decided to significantly change my introduction. I still welcomed the two minutes without interruption, but it wasn’t as polished or fluent as I had hoped. I strongly urge the justices to keep this innovation.
Live audio streaming of oral arguments
The Supreme Court has steadfastly refused to allow live broadcasts of its oral arguments. Even as federal courts of appeals and state supreme courts livestreamed and archived oral arguments, the Supreme Court has refused to permit this. The court makes transcripts of arguments available the same day and releases audio tapes at the end of the week in which the arguments are held. On rare occasions, in particularly high-profile cases, the court has made audio tapes available immediately after the argument.
Many have argued that the court should allow cameras in its courtroom, but this has fallen on deaf ears with the justices. Bills have been introduced in Congress to require live broadcasts of arguments, but none has been adopted, and it is uncertain whether legislation imposing this on the court would be constitutional.
The oral arguments during the weeks of May 4 and May 11 were conducted by telephone and the audio was streamed live. Millions of people listened, especially on May 12, to the arguments in the cases involving subpoenas directed to President Donald Trump’s accountant and banks. Those who listened to these or other arguments heard well-prepared justices asking tough questions to superb lawyers. I would think that the public’s image of the court only was enhanced by listening to these arguments.
I never have understood the argument against live broadcasts of oral arguments. Some have suggested that it would cause lawyers, or maybe even justices, to play to the cameras. I always have been skeptical of that concern. Justices are in complete control of the argument and everyone is very focused on the case. Besides, audio tapes are already available, sometimes even right after the argument. Providing the audio hours or a few days earlier isn’t likely to change how anyone acts.
But any concern over this should be allayed by the recently held arguments. It is impossible to see any difference in them based on their being broadcast live. Neither the justices nor the advocates were speaking to the larger audience; both seemed to act the same as when no broadcasts occurred. The discussions, as they should have been, often were about the details of a statute or the meaning of a precedent and likely, at times, would have been difficult for non-lawyers to follow.
I hope the court will continue this innovation and broadcast all arguments and all proceedings in open court. The high court is a government institution grappling with issues that affect the country and people’s lives, often in profound ways. People should be able to listen, and hopefully, watch its proceedings.
A dramatic difference in the telephonic arguments was how the questioning was done. The justices, in seniority order, asked questions of each advocate. In other words, Chief Justice John G. Roberts Jr. began the questioning, followed by Justice Clarence Thomas and continuing until the newest member of the bench, Justice Brett M. Kavanaugh, finished his questions.
Each justice had a set number of minutes and Roberts was aggressive in cutting off the justices and the lawyers when the time was up. Occasionally, there was time for a second round of questions. Unlike traditional oral arguments, each justice asked questions for approximately the same amount of time.
This method of questioning had the virtue of orderliness. Usually, a lawyer does not know which justice will ask the next question. Often lawyers get very little time to answer one justice’s inquiries before another justice interrupts with a question about something totally different.
In one early case I argued, I received a question from Justice John Paul Stevens, but before I could answer, Justice Anthony M. Kennedy asked me to add something to the hypothetical. And before I could answer that, Chief Justice William Rehnquist, too, added something to the hypothetical. I said a couple of sentences in response to Rehnquist’s wrinkle, and then Scalia asked me about something totally different.
I often have felt that Supreme Court justices have very little respect for each other’s questions. They frequently interrupt an answer before an advocate has had a chance to reply, even briefly, to another justice’s question.
The telephonic arguments solved that problem. But I think that the solution was worse. Often justices clearly had follow-up questions but ran out of time and did not get to ask them. A justice who wanted to ask a follow-up to another’s questions had to wait his or her turn. Instead of Justice Sonia M. Sotomayor asking an immediate follow-up to a question from Roberts’ question, Sotomayor would have to wait until after several other justices asked questions about other matters. There was a loss of coherence to the questioning and a loss of depth to the exploration of some of the issues.
I understand why this was the format for a telephonic argument, but I am not sure why the court felt that this medium was necessary. Some federal courts of appeals and state supreme courts are conducting oral arguments over video conferencing platforms like Zoom. The advocates and the judges can see each other, and the argument far more closely resembles that which occurs in the courtroom.
Hopefully, by October, the court can hold arguments in its majestic courtroom. But if not, it should use a video conference platform and abandon sequential questioning. And when in-person arguments resume, the usual robust and lively format should resume as well.
In October 1918, the Supreme Court canceled oral arguments because of the Spanish flu pandemic. Electronic arguments, even by telephone, were not possible then. Technology is vastly different now, and the court should use it.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.