“The honorable, the chief justice and the associate justices of the Supreme Court of the United States. Oyez, oyez, oyez.” With those hallowed words from its marshal—and not so much as a nod to the historic nature of the occasion—the Supreme Court opened a double first yesterday: its first session conducted by phone, and the first time that proceedings have been broadcast live to the world outside the courtroom. (To date, audio of arguments has only ever been made available after the fact.) In some respects, listening in felt like a nostalgic, low-tech throwback, even though there was no precedent to throw back to, and the case being heard—an appeal by the website Booking.com, which believes, contra the federal government, that it should be allowed to copyright its URL—involved the wilds of the internet. Occasionally, there was a crackle on the line; once or twice, the sound cut out, at least for me. One of the justices, Sonia Sotomayor, had to be called on twice before she spoke. Some speculated that there’d been a mute malfunction. (We’ve all been there.) On the whole, the tech behaved itself, and the session was compelling listening. Justice Clarence Thomas even spoke, for the first time in over a year.
Ahead of yesterday’s session, SCOTUS reporters—who, as Amanda Palleschi wrote for CJR in 2018, are accustomed to having to “read the tea leaves” of the “infamously secretive” institution—stressed that the live broadcasting of arguments was a very big deal. Many outlets, including C-SPAN, set up live feeds to show them. PBS wondered whether the justices would still wear their robes; Nina Totenberg, who covers the court for NPR, reported that lawyers she’d spoken with were planning to stand when arguing before the court, even though no one would be able to see them. Bloomberg Law published baseball cards with guides to upcoming cases, including “fun facts” about the attorneys arguing them. SCOTUSblog, which does what its name suggests, published a banner cartoon of the nine justices on the phone. It showed Justice Ruth Bader Ginsburg lifting a weight with one hand while holding the receiver in the other.
Novelty aside, some observers feared the session might be a snooze—due to the dry case being argued, and because the phone-in format would limit the lively give and take between justices. (Instead of the usual free-for-all, the justices were invited to speak in order of seniority yesterday.) After the session ended, Totenberg reported that while the tech worked well, the typical back and forth had, indeed, been “strangled”; Tom Goldstein, SCOTUSblog’s publisher, told her that the arguments were likely less useful than usual for the justices, because they had fewer opportunities to engage with the lawyers before them, and with each other. Writing for Slate, Dahlia Lithwick and Mark Joseph Stern argued that on balance, the justices’ “disjointed” exchanges—and inability to trade “visual clues”—probably wasn’t great for legal rigor.
Still, to my untrained ear, the session felt surprisingly fluid, and captivating. Chief Justice John Roberts cut short lawyerly waffling to keep things zipping along. And there was something quietly thrilling in listening to elite lawyers navigate a scary new format in real time. Seasoned court watchers are undoubtedly right to say that the proceedings were more stilted than normal—but that came down to the justices and lawyers’ remote participation, not the public’s remote consumption. On the latter score, several legal experts found the success of the live broadcast vindicating. Elie Honig, legal analyst at CNN, noted that the “sky didn’t fall” yesterday. “This is about more than an upgrade in technology,” he wrote. “This is about transparency, accountability and public accessibility.” Lithwick and Stern argued that “If SCOTUS had its druthers, it would probably have kept its oral arguments sealed off from the world forever, rejecting cameras in the courtroom even after Google someday implants webcams into every human retina.” Yesterday proved that that stance is silly. “The court has now shown that it can do good law in public,” they wrote. “We’re going to learn very soon whether it dares do bad law right before our eyes.”
According to Adam Liptak, who covers the court for the New York Times, justices have, in the past, expressed fears that live broadcasts could lead to their words being clipped and taken out of context, and could encourage lawyers to mug for the cameras. (According to Fix the Court, a nonpartisan advocacy group that promotes judicial reform, each of the nine current justices previously supported the live broadcast of oral arguments, but changed their minds once they reached the bench.) As Elie Mystal, justice correspondent at The Nation, wrote yesterday, such logic has always been “tortured.” Except for Foreign Intelligence Surveillance Court, all courts are physically open to the public. “If you want to see a Supreme Court argument, all you have to do is wake up early and stand in line,” Mystal noted. “Putting a live feed in the courtroom is simply about making it easier for the public to hear and see what it’s already entitled to hear and see.”
Now that the court has granted live audio access, the pressure to allow cameras when it returns to normal session (whenever that may be) will only grow. This genie may prove hard for the more reticent justices to put back in the bottle; as with so many other aspects of pre-virus life, this crisis may, when it comes to the policies of the court, have crafted a permanent change out of temporary necessity. For now, the court will continue broadcasting live audio as it hears arguments in nine further cases, two of which concern subpoenas for Trump’s financial records. That’s an exciting prospect. Then again, I enjoyed Patent and Trademark Office v. Booking.com.
Below, more on the coronavirus:
- More from Washington: According to internal figures obtained by the Times, the Trump administration is privately projecting that coronavirus deaths in the US will reach 3,000 per day by June 1, a 70-percent increase on the current daily rate. In other news, Dr. Anthony Fauci told National Geographic that based on existing scientific evidence, he doesn’t entertain theories—advanced by his boss, President Trump—that the coronavirus may have escaped from a Chinese lab. Katie Rogers, of the Times, reported that the interior secretary gave Trump special permission to hold his Sunday town hall with Fox News on the Lincoln Memorial, even though it’s currently closed. And Trump will skip town today for his longest trip since this crisis intensified. He’s going to Arizona.
- “Science at dangerous speeds”: For CJR, Ivan Oransky, a doctor turned health journalist, advises reporters who may be new to the virus beat on how they should cover scientific studies. Among other steps, journalists, Oransky says, should always read the whole study (not just the press release), ask “dumb” questions, look for the limitations in a study, avoid “disease mongering,” and work out who may have a financial interest.
- The flukes of hazard: Neil Irwin argues, for the Times, that commentators across the political spectrum are misapplying the notion of moral hazard—the problem, prevalent after the 2008 crash, of shielding bad economic actors from the consequences of their conduct—to the measures Congress is taking to address the economic crisis caused by the coronavirus. “Increasingly,” Irwin writes, “lawmakers, media coverage and ordinary voters are focused not on preventing a potential depression, but on litigating which recipients of federal rescue are morally worthy and which are not.”
- “Chickenshit”: Tim Bray, an engineer and vice president at Amazon, has quit the company in protest of its firing of whistleblowers who spoke out about working conditions in Amazon warehouses amid the pandemic. In an open letter, Bray called the company “chickenshit” and accused it of creating a “climate of fear” among staffers. Jason Koebler writes for VICE that “Amazon’s strategy throughout the coronavirus crisis has been to fire dissenters and disparage them both in the press and behind closed doors.”
- “A learning curve”: For Nieman Lab, Hanaa’ Tameez assesses how Spanish-language media in the US has covered the virus. “At least at the beginning of the pandemic, its coverage style wasn’t so different from English-language media: It largely left Latinos out of the story,” Tameez writes. Since then, according to an analysis from CUNY, its stories have shifted, focusing more on “undocumented people and farm workers, both of whom are considered some of the most vulnerable parts of the population.”
- In brief: Last month, CJR’s Akintunde Ahmad reflected on consuming sports media in the absence of sports. Now ESPN is giving us something to watch live: South Korean baseball. Researchers at City, University of London, found that the ratio of male to female experts appearing on UK TV news shows hit a three-year high—2.7 men to every woman—in March. (The figures are looking better for April.) And after Wendy McCaw, the owner of the Santa Barbara News-Press, published an editorial comparing stay-at-home orders to Nazism, the paper’s editor, Nick Masuda, left his post. The LA Times has more details.
Other notable stories:
- The Pulitzer Prizes were awarded yesterday. The Anchorage Daily News and ProPublica won the public-service prize for reporting on the iniquities of Alaska’s criminal-justice system. (CJR’s Amanda Darrach profiled that project last year.) Other winners included the Louisville Courier-Journal, for coverage of former Kentucky Governor Matt Bevin’s pardon spree; the Baltimore Sun, for coverage of scandal-hit Mayor Catherine Pugh; and the Seattle Times, for coverage of Boeing. Nikole Hannah-Jones, of the New York Times Magazine, won the commentary award for the 1619 Project. This American Life won the inaugural audio-reporting award. And the prize for editorial writing went to Jeffery Gerritt of the Palestine Herald-Press, a small paper in Texas that recently cut its print schedule due to the ad crisis brought on by the coronavirus. You can find all the winners here.
- Andy Lack is out as chairman of NBC News; Cesar Conde, the chairman of Telemundo, will replace Lack later this month, in a new, business-focused role with oversight of NBC News, MSNBC, and CNBC. Lack had some programming success, but as the Times reports, his “stormy tenure is likely to be defined more by its controversies”—including his handling of Ronan Farrow’s reporting on Harvey Weinstein, the sexual-assault allegations that led to the firing of Matt Lauer, and Lack’s disastrous bet on Megyn Kelly.
- According to Gabriel Sherman, of Vanity Fair, investors aligned with Donald Trump, Jr., and the family of Tommy Hicks, co-chair of the Republican National Committee, have acquired a “major stake” in the Trump-boosting One America News Network. Don Jr. and Hicks have been “looking to buy a station for Trump TV,” one source said. “This is all about building a Fox competitor. Trump is really aiming to take down Fox.”
- Teodor Mircevski, a “fake news kingpin” from North Macedonia who set up partisan sites to capitalize on the 2016 US election, is back on the scene, the Daily Beast’s Adam Rawnsley and Hanna Trudo report. “American media outlets and readers,” they write, “seem none the wiser, as at least one outlet associated with him fooled organizations like Fox News and the Washington Post into believing it was a local ABC affiliate.”
- For CJR, Erin Gallagher reports that William F. Buckley, Jr., helped paper over the atrocities of Argentina’s military junta in the 1970s. According to documents obtained by Gallagher, a trip Buckley made to the country was “a carefully stage-managed project of the junta itself, working with the American marketing and PR firm Burson-Marsteller, which kept a list of potentially sympathetic journalists for the use of the junta.”
- The Guardian’s Shaun Walker profiles Janez Janša, Slovenia’s media-bashing new prime minister who calls reporters “presstitutes” and recently shared an article accusing press-freedom advocates of using cocaine. Janša is a mentee of Viktor Orbán, Hungary’s authoritarian leader, and draws on the support of a TV network funded by Orbán allies.
- And John Ratcliffe, the Republican Congressman who is Trump’s nominee for director of national intelligence, follows several conspiracy theorists on Twitter, including “a 9/11 truther account with just one follower besides himself and four promoting the outlandish QAnon” theory. The Daily Beast’s Spencer Ackerman and Will Sommer have more.