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

Lyle Denniston began reporting on the Supreme Court in 1958, and he has been writing articles about the court ever since (including as a SCOTUSblog reporter from 2004 to 2016). He now writes articles about courts and laws for his blog, lyldenlawnews.com.

Like the entire United States and the world, the Supreme Court must now ask itself how it hopes to shape a “new normal” after the COVID-19 pandemic. For those who follow the court closely from the outside, since March 2020, there is both hope and great uncertainty about what may now become the norm.

Some observations that influence people’s expectations can be summarized as the following contradictions:

First: Although the format of the hearing itself has serious flaws, the court has taken an important step in transparency (live audio of oral arguments). Justice Clarence Thomas appeared as an active questioner. Although late, it is refreshing, but it does not make up for the lack of meaningful communication between judges.

Second: The court struggled bravely, with almost no obstacles, to keep up with the pace of opinion writing, even when closing some of the substantive work in William Baude’s “Shadow File” Proper phraseThe quality of final rulings in debate cases (regardless of how people view the substantive results) is still high, even if the court continues to do less than it can, and may do much less than it should.

At least some positive and negative aspects are predictable responses to public health crisis emergencies. The question that now arises is whether the courts will simply resume normal operations since the CDC and other public health authorities have relaxed COVID restrictions to some extent. (Of course, if the spread of new delta variants and vaccine resistance combine to cause a surge in new diseases and deaths, everything could change.)

From the outside, we must assume that judges are using some of their summer recess to think about the lessons they are preparing to learn from the pandemic experience. At the very least, one may hope that the building will soon be reopened to the public and the press, and appropriate public health measures will be taken in order to find a safe way to engage in public oral debates with judges, lawyers, and attending audiences. I will announce my opinions from the bench again.

For a slowly changing organization, perhaps only obvious measures will be considered sufficient. Expecting the courts to begin to allow television coverage of oral arguments (desirable but probably too radical for the current nine), or to significantly extend the debate time or the number of certificates granted (both are very desirable, but may be too demanding) may be too much A lot of extra work).

From the observer’s point of view, two things are most needed: (1) Under any future conditions, completely abandon any repetition of the oral argument style followed during the crisis; (2) seldom use “shadow” Case files”, at least in recent epidemics.

1. Flaws of “Circular” Oral Argument

People must first understand the basic and practical functions of oral arguments. It is not up to the lawyer to present their case; it is necessary but secondary. Instead, the judges should use their questions and comments to determine the issues to be discussed in the subsequent meeting deliberations. This requires a real exchange of ideas and opinions (which was not realized at all during the certification phase).

Chief Justice John Roberts enforced each justice’s allotted time, and the argument turned into a parade, only occasionally and awkwardly related to each other. This will inevitably extend the time of the argument (mainly for the benefit of the lawyer, not the court). It over-enhanced the role of the Chief Justice, but it is not always skillfully exercised. It tests the patience of most judges at least from time to time. It destroys comments and dilutes opportunities for real dialogue and cooperation. In general, it gives the listening public a blunt impression of the judgment of a multi-judge court.

2. Abuse of “shadow file”

The use of an essentially motion approach—a temporary measure through a summary order that does not involve major briefings or oral arguments—making substantive law almost equivalent to a pandemic is not entirely new. But its abuse is clearly more pronounced during the crisis, especially in three areas where the courts have recently worked: monitoring COVID regulations, responding to perceived threats of religious worship, and responding to artificial disputes about the calculation of presidential votes.

It seems that the courts have written impatiently more broadly, addressing unnecessary issues, rather than customary practices in this area considered limited contemplation and consideration. Most of them also have the taste of sloppy judgment, which may be driven by the agenda in these particularly sensitive areas. Perhaps this is the result of remote work; direct personal communication may have played a mitigating effect.

In actual effect, this part of the file seems to be used instead of granting more certificates and issuing stay periods, just to maintain the status quo pending review.

The court is now under new scrutiny, especially by President Joe Biden Court Reform Committee, Judges can benefit from serious internal reflection on their own reform needs.