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The sky didn’t fall when the Supreme Court went live (opinion)


I’ve argued dozens of cases in front of federal appeals courts. From a lawyer’s perspective, it’s not ideal to argue a case over a phone line. There is no substitute for being in the courtroom, for standing at a podium in front of (and, literally, below) the presiding judges.

A lawyer can and must read the room, watch how judges react, see their body language and facial expressions, catch the inflection in the questions asked. A subtly raised eyebrow, a quick nod, a raised hand or a quizzical look from a judge can send a powerful signal, for better or worse.

But sometimes good enough simply must be good enough. The Supreme Court could not responsibly call itself back into live, in-person session. The justices range in age from 87 (Justice Ruth Bader Ginsburg) to 52 (Justice Neil Gorsuch), and seven of the nine are 60 or over. It would be logistically difficult and perhaps impossible to safely bring them together physically, along with the lawyers and necessary support and security personnel.
Yet, it simply was not tenable for the Supreme Court to continue to delay its docket pending resolution of the coronavirus pandemic (especially with no such prospect on the immediate horizon). The Supreme Court went into a full adjournment over six weeks ago, in mid-March, and only now resumes hearing cases.
As a result, several key cases — including the dispute over President Donald Trump’s tax returns, which is now scheduled to be argued next week — have been delayed.
The Supreme Court leads the nation’s judicial branch and its decisions bind every court in the country. But on issues of technology and accessibility, the Supreme Court lagged behind. All state-level courts allow video in at least some circumstances.
And at least some states permit certain criminal proceedings, including a criminal defendant’s initial appearance, to be done by video conference. Yet, up until Monday, the Supreme Court clung to its antiquated notions of pomp and circumstances: no media feeds from the courtroom, no cameras, no video recording, no real-time public access.

This is about more than an upgrade in technology. This is about transparency, accountability and public accessibility. The Supreme Court is, of course a public entity, and its work is of enormous importance. So why should it do its public business where only a few hundred lucky and determined people can see the process in action?

Yet, as recently as 2019, the court offered strained explanations for its reluctance to adopt modern video technology.
But, it turns out, the sky didn’t fall when the court went live. Monday’s first-ever livestreamed, remote Supreme Court argument — in a case concerning trademarks — was, well, unremarkable. The technology worked. Questioning by the justices was orderly and efficient, and the attorneys gave focused, responsive answers. There was minimal confusion or cross-talk. It wasn’t ideal or dynamic, but it worked.

Now, with the coronavirus changing virtually everything about our country, it’s time to drop the quill pens and dial into the conference call. It may seem beneath outdated notions of the court’s dignity, but it’s the right — and, in a sense, only — decision for these extraordinary times.

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