Editor’s note: Jason Mazzone is the Albert E. Jenner Jr. Professor of Law and the director of the Program in Constitutional Theory, History, and Law at the College of Law at the University of Illinois at Urbana-Champaign. Mazzone spoke with News Bureau business and law editor Phil Ciciora about whether the Supreme Court is likely to keep livestreaming its oral arguments after the COVID-19 pandemic subsides.
Why did it take a pandemic to get the U.S. Supreme Court to start airing its oral arguments live? Shouldn’t this have happened years ago?
Supreme Court practices do not change often or quickly. Consider this: The three newest members of the court – Elena Kagan, Neil Gorsuch and Brett Kavanaugh – all clerked at the court soon after they graduated from law school. I am sure that when they returned to the court as justices decades later, it took no time for them to figure out how to do the job because very little would have changed.
Against that background, the court’s decision to hold, for the first time ever, arguments by telephone in 10 cases this month and to live broadcast those arguments is revolutionary.
Why not punt all the remaining oral arguments to the fall?
The justices evidently determined that argument in the 10 cases was needed and should not be delayed. Other cases from this term have been put off to the fall. Holding in-person arguments would be irresponsible in light of the attendant health risks. The justices are also deeply skeptical of video sessions. Argument by telephone is the only other option. Live transmission is more surprising. The court might have followed its usual practice of making audio recordings available at the end of argument weeks. But perhaps the justices concluded that replicating, as best as possible, the courtroom argument experience required a simultaneous audience, albeit a much larger one than the physical courtroom could accommodate.
What are the challenges of an audio-only format for oral arguments? How much is lost when lawyers are unable to discern the justices’ body language from the bench?
Some things don’t change. The justices are very prepared, and they know how to ask challenging questions, whatever the setting. Likewise, lawyers arguing before the Supreme Court spend many hours getting ready, whether they appear in person or by telephone. Many lawyers say that they like to be able to read the facial expressions or body language of their audiences. But both sides in these cases are in the same position, so any disadvantage is equally shared. And there might even be some advantages to invisibility. Lawyers who argue by telephone can read from their notes or have associates next to them passing the answers. You can’t do either of those things in the courtroom.
If this format proves popular, do you foresee the Supreme Court going back to the old format?
Telephone argument and livestreaming are temporary measures. The court will return to its usual practices when it is safe to do so. The justices won’t make a permanent change without a really good reason – and I doubt they’ll find one from the experience with these 10 cases.
My own impression of the telephone arguments is that the justices would have found them much less useful than in-person argument. When the justices are in the courtroom, they pepper the lawyers with questions, they cut off nonresponsive answers and they jump in to pursue topics more deeply or to shift a line of interrogation.
That style doesn’t work on a conference call. Thus, for the 10 cases argued by telephone, the court has adopted a very different format: The justices, proceeding in order of seniority, have a limited time to ask a small number of questions of each side. For the casual listener, the telephone arguments would seem much less chaotic than the courtroom arguments. But with the argument slowed down, with fewer questions asked and little opportunity for following up, I suspect the justices themselves are not thrilled. They are probably not getting much more from these arguments than they already get from the written briefs in the cases.
In the interest of greater transparency, should all future proceedings be broadcast live with audio and video on C-SPAN?
Video is out of the question. No member of the court is advocating it. The justices don’t want to be television personalities, and they worry that broadcasting arguments will give a distorted impression of what they do. They see no upside to it.
Oral argument is a small part of the deliberation and decision process. By that time, justices have read the briefs, reviewed the record and the lower-court rulings, and read the statutes and cases that bear on the issues the case presents. It mostly serves to clarify very specific points in a case, to see if there are issues on which both sides can agree and to explore other matters the justices want to hear about but that are not dealt with adequately in the written submissions.
As a result, oral argument is not the best or most representative place to look – or listen – to find out what the court is doing. In many cases the argument won’t even make any sense unless you have first read the briefs. This week’s telephone arguments are again a bit different. With the justices’ usual high-octane questioning style hampered, the telephone arguments are easier to follow but there is much less focus on the nitty-gritty details that determine the outcomes of disputes.
Still, it is wrong to conclude that because arguments are not broadcast live, the Supreme Court lacks transparency. In every case it decides on the merits, the court issues an opinion – a written explanation for why it has reached the result it has. No other government institution provides the same level of detail to explain its every action. The court has always understood that its power lies in reason, which doesn’t require a live feed.