Courts After COVID: The Secret of Oral Argument Reform


Since the beginning of the COVID-19 pandemic, the Supreme Court has not been open to the public—the judges have not served as judges. (Spiroview Inc. from Shutterstock)

The Supreme Court has not announced whether it will resume normal operations at the beginning of October 2021-22.This article is the first forum About how the coronavirus pandemic has changed the courts — and which of these changes are worth keeping.

Steven V. Mazie is responsible for the Supreme Court economist He is also a professor of political science at the Early College of Bard High School in Manhattan. His most recent book is “American Justice in 2015: Roberts Court’s Dramatic Tenth Term”.

Last spring, when COVID-19 closed, the Supreme Court picked up the call. The judges postponed the oral arguments in March and April 2020, and returned home in May to hear the case through pure audio conference calls; all seven debates in the next semester were also conducted by telephone. As the pandemic begins to subside, all judges are vaccinated, and it seems that on October 4—the opening day of the 2021-22 term—the Supreme Court will reopen in the magnificent court opposite the Capitol.

When the judges hear the case in person again, lawyers, the press and the public are all vying for seats, which will be worth celebrating. In the best case, these arguments are prominent displays of intellectual drama, usually focused on key legal and political issues today. It would be a relief to have them face to face again-we will eventually see Judge Amy Coney Barrett sitting in the rightmost chair on the bench in the courtroom. However, if the judges simply resume normal work, it will be a wasted opportunity.The Court Reform Committee as President Joe Biden Consider legislative reform As far as the structure and powers of the Supreme Court are concerned, the justices’ experience over the past year may spur internal reforms.

First, consider making the public aware of the court’s proceedings. Before COVID, the Supreme Court released audio recordings of oral arguments on Friday. The delay of several days-never explained or proved-meant that only a few hundred people in the court could hear the discussion on the spot. In order to increase transparency, judges began live broadcasting their telephone debates last year, allowing interested Americans to listen to C-SPAN. When the justices came out of the home office, there was no reason not to let the live broadcast continue.

Then there is the format. The change of venues forced oral arguments to shift from random and quick questions from all directions to orderly turns. The judges asked the lawyers in turn according to their seniority. Some long-term court observers criticized the form of the pandemic. Lyle Denniston, a journalist who has reported in court for 60 years (including for SCOTUSblog), called this a “terrible experiment” in a tense conversation. Denniston said that the oral arguments represented “the first time the judges talked about the case in earnest.” Denniston said it was “critical” for them to return to a form that allowed true mutual concessions.

When the court reopens, the noisy exchanges that have not been mediated by the speaker list should resume. Chief Justice John Roberts, who will host the show, will look up from his stopwatch. He will no longer face the embarrassing task of calling the next judge to speak by interrupting colleagues or advocates and disrupting the flow of arguments. Spontaneity will be restored: Judges will be able to continue discussions on each other’s issues or question the lawyer’s claims without having to fiddle with thumbs in the queue.

However, the continuous questioning of the past year, coupled with the emergence of live audio, has its advantages. This structure gives the court greater legitimacy. Before the pandemic, judges often saved firepower for lawyers they tended to oppose – and stayed on the sidelines or threw softballs at lawyers they agreed. But in the past year, the left and right judges have usually asked both sides sharp questions. This makes it more difficult to guess how the case will be resolved. But it adds a more just atmosphere to the proceedings. Although Justice Clarence Thomas remained silent for most of his tenure-from 1991 to 2019 on average less than one minute a year on air-the orderly interrogation put him in a difficult position. The silent judge canceled his silence, spoke at each hearing, and often (in part because he spoke early in the queue, just after Roberts) shaped the discussion.

On the way to encourage wall flowers, no teacher will give up the inclusive approach at the first opportunity. The Supreme Court should not give up giving each judge a few minutes to ask questions. The justices, lawyers, and the public will all be inspired by a format that continues to reserve room for the inquiries of all nine justices. Therefore, when it returns, the Supreme Court should consider a hybrid approach: each judge asks an initial round of questions, followed by traditional free competition. This could give each of the nine an opportunity to raise concerns before lifting the restrictions, so that more searches can be conducted on details that require more in-depth research.

In a rare impromptu transition on March 24, Roberts demonstrated the results of this approach.exist Canilla v. Strom, In a case that asked the police whether they could enter the home to perform their “care” duties without an arrest warrant, the director loosened his tie and allowed the judge to ask other questions at will during the last 10 minutes of the hearing. The sky did not fall: Roberts asked a question, followed by questions from Justice Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Sonia Sotomayor. If this hybrid format can run on mobile phones, then it can fly in person.

However, if judges want to conduct an orderly and spiritual hearing, they will need more time. The first telephone debate last May (In a trademark case) 15 minutes longer than the usual 60 minutes. In November, California v. Texas, The doom challenge to Obamacare was originally scheduled to be extended by 80 minutes, but ran away Two hoursIn the meeting in March this year, the six mainly ordinary debates averaged about 85 minutes.

During the first 60 years, the court had no time limit for oral arguments; the hearings lasted for several days. In 1849, a four-hour limit was introduced and tightened to two hours in 1920. In 1928, Chief Justice Charles Evans Hughes lamented that too much time was “inevitably wasted… listening to futile discussions.” Since 1970, the one-hour limit has been applied to all cases except for a few particularly complicated or compelling cases.

As things slowly return to normal, the court should remain flexible and open. Keeping the live audio is a long-overdue way of getting the public to participate in the hearing, and it is effortless. Extending oral arguments to around 90 minutes to accommodate the improved format is hardly a revolutionary move (and may attract original creators on the bench). The judges are pressed for time: Although the courts have reviewed 150 cases each year since the 1980s, they have only heard about 60 cases recently.

The Supreme Court is known for resisting change. But when judges finally slide into the high-back leather chairs behind the bow-shaped benches, they should not miss the opportunity to reform their practices.

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