The Media Today

The Supreme Court: Live and Disputatious

May 5, 2020

“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, 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.

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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.”

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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.

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.