Courtroom access: Will COVID-19 lead to streaming oral arguments?

The tragedy of the coronavirus pandemic has raised the issue whether the Supreme Court might provide some alternative form of public access. Obviously, it is unsafe to attend sessions of the court in person, just as it would be to congregate anywhere else.

For now, the court’s solution has been to postpone oral arguments and cancel the public non-argument sittings at which the justices usually take the bench. Instead, the court has released its opinions exclusively through the court’s website and admitted lawyers to its bar on written motions. The court has canceled its March oral argument sitting and, while it has not yet made an announcement, will inevitably have to cancel the April sitting as well.

If this crisis were going to pass soon, the court likely would do little more than reschedule oral arguments and perhaps decide some of the cases based just on the briefs. Few of the cases that were set for oral argument in March and April raised questions that require urgent attention. Holding oral arguments in the fall would generally work just fine.

But as a practical matter, it will not be so simple. Given that a vaccine is not expected for at least a year, it may be dangerous – indeed, life threatening – to hold public proceedings before the spring of 2021. There would be significant risks for at the very least the elderly and the immunocompromised. Although we think of the “worst” of the crisis passing in April, that means only that the largest numbers of deaths will occur this month. The virus itself will not be any less deadly in the summer, and models predict that it will reemerge as a serious threat to public health in the fall and winter of 2020.

One obvious question is whether and to what extent the justices themselves would be able to participate in oral arguments in person. The incapacity of even a single justice raises serious issues for the court’s functioning, because – unlike in any other federal court – it is not possible to substitute another judge.

There is no person for whom it is “safe” to become infected with the coronavirus. It is too soon to know, but for a year, the court may have no choice but to reconceptualize the process of oral argument, radically. It simply may be too dangerous for some or all of the justices to come to a courthouse that has surfaces that have been exposed to the virus, and to interact with staff members who may have become infected.

The problem is severe because it would not be practical to conduct oral arguments in their ordinary form without the justices’ participating in person. Trial courts and three-judge panels of the courts of appeals can manageably conduct proceedings by telephone or video. But eight members of the supreme court – all but Justice Clarence Thomas – actively participate in arguments. They cut each other off even in person. Without the immediate visible and audible cues that come with in-person discussions, remote arguments would be a train wreck.

If as is likely no vaccine is available this fall, the court will have to consider conducting oral arguments remotely by video. Likely, the justices would decide substantially more cases on the briefs. But for the cases that are going to be argued, there almost certainly would have to be an orderly process in which each justice is given the opportunity to ask questions. The alternative would be to cancel or defer almost all the arguments for a year.

What about public access? For the time being, the court is very likely to stick to the view that it is inappropriate to provide video streaming of its proceedings. But it will be impossible to maintain that position if the arguments themselves are held remotely. And if the court permits video streaming during the crisis, it will be difficult to justify stopping when it ends.