Supreme Court livestreams hearings for first time. Three questions.
The U.S. Supreme Court is not an institution that changes quickly. It was 1935 when it got its own courthouse, and it is only now airing hearings via technology due to the pandemic.
Will Dunham/Reuters
History will be made Monday when, for the first time, oral arguments at the United States Supreme Court are broadcast live to the public.
Numerous state and federal courts have been livestreaming arguments for years – and have expanded the practice during the pandemic. But to the frustration of transparency advocates, the technophobic Supreme Court had resisted calls to follow suit. This month, however, the justices will hear arguments in 10 cases via telephone conference, with audio from the arguments broadcast live on C-SPAN.
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Why We Wrote This
The Supreme Court does not adopt change lightly. When it does – as with its first livestreamed hearings – it is worth understanding why, and what took the high court so long to make the shift.
Why did the court change now?
The generational crisis that is the coronavirus pandemic is the main reason. The outbreak forced the high court to suspend oral arguments in March and April for the first time since the 1918 influenza outbreak, and like millions of other Americans, the justices have been working from home.
The high court clearly felt that some major, time-sensitive cases needed to be argued, however. With in-person arguments off the table, they took a cue from lower courts around the country by holding arguments over the phone. And if arguments were going to be telephonic, they would have to be broadcast live.
“It would have been impossible to avoid a charge of hypocrisy that some listen live and others can’t,” says Josh Blackman, a professor at the South Texas College of Law in Houston.
Plus there would have been the risk of the arguments being leaked or eavesdropped on, he adds.
Why has the court been so hesitant?
The Supreme Court has always been slow to embrace change, particularly when it involves new technology or systemic change. The court’s most recent adoption came in 2017 when it made new court filings available online – years behind the rest of the federal court system.
As for livestreaming oral arguments specifically, the high court has resisted for various reasons, including concerns that it could have a chilling effect, or encourage sound bites – from justices and advocates – over thoughtful questions and arguments.
The court has developed in recent decades into a “hot bench,” meaning the justices like to pepper advocates with questions and hypotheticals, often interrupting or talking over each other. And for this month’s historic arguments, the lack of visual cues may have brought more confusion than clarity.
The court hoped to solve that issue by having justices ask questions in order of seniority. But it still puts advocates “in a tough spot,” Professor Blackman says, “because they’re not going to know how the justices are reacting to their positions.”
Will streamed hearings continue after the pandemic?
Oral arguments are the public’s only opportunity to see the high court in action, and they are notoriously inaccessible – to the point that those who want to attend will pay $35 to $50 an hour to someone to hold a spot in the line outside the court for public seating. (Except for select cases, audio of oral arguments isn’t posted online until the end of the week.)
Such restricted access can fuel damaging misperceptions about the high court, argues Gabe Roth, executive director of Fix the Court, a nonpartisan organization that advocates for increased transparency and accountability in federal courts.
“You can’t know what you can’t see,” he says. “Any general transparency would demonstrate to the American people that by and large the court is operating outside of politics.”
Furthermore, 43 state supreme courts and six federal appeals courts already livestream argument via video or audio, either routinely or by request, according to Fix the Court. And they’ve reported few problems.
“This has been done before, and it’s been done in a way that helps educate the public,” says Mr. Roth.
Professor Blackman agrees that while the court’s hand has been forced, now that arguments will have been livestreamed “it’s hard to put this genie back in this bottle.”
Some experts are skeptical, though. For an institution with a historic reticence to adopt new technology, as the world returns to normal the justices could choose to do just that: return to normal.
“The fact they’re so slow to come onto technology even in this crisis,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago, “and that they’re doing it in such a modest way, signals that this isn’t a court that’s rushing into the technological age.”
Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.