Question remains if allowing audio of arguments to be broadcast live will change court traditions
By Jessica Gresko
Associated Press
WASHINGTON (AP) — The coronavirus pandemic has changed the way the Supreme Court is doing business. For the foreseeable future the court will be announcing its opinions not in the courtroom but by posting decisions online. And the justices are holding their private conferences by phone.
Over the past two weeks, the court heard arguments in 10 cases by telephone, with the audio of arguments broadcast live for the first time. The changes made for an extraordinary set of arguments.
It’s unclear when the justices will actually take the bench again. Normally, the justices hear arguments from October through April and issue opinions in all argued cases by the end of June. Then they take a summer break and begin the cycle again with arguments resuming in October.
Here are five things to know about the recent telephone arguments:
THE CASES
The biggest cases the Supreme Court heard over the past two weeks involved President Donald Trump’s bid to keep certain financial records private. But after nearly three and a half hours of arguments on Tuesday, it was unclear how the cases would come out. The court appeared likely to reject Trump’s claim that he is immune from criminal investigation while in office. But the court seemed less clear about how to handle subpoenas from Congress and the Manhattan district attorney for Trump’s tax, bank and financial records.
The Trump cases and two others the court heard, about people selected to be members of the Electoral College, have potential implications for the 2020 election. In the electors case on Wednesday, the court seemed concerned about potential chaos that could result if states can’t remove electors who decline to vote for their state’s popular vote winner. The court also heard two cases involving the separation of church and state, one involving the Affordable Care Act’s requirement that employers cover birth control and another about when religious employers are exempt from employment discrimination lawsuits.
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THE JUSTICES
Telephone arguments brought with them a number of changes. The justices asked questions in order of seniority rather than in the free-for-all style they do in the courtroom. Those who listened to the telephone arguments also heard something they normally don’t in the courtroom: Justice Clarence Thomas. Thomas has criticized his colleagues’ aggressive questioning style and very rarely joins in. Before these arguments, he’d last spoken a year ago, and he once went 10 years without talking. But in the telephone arguments, Thomas asked questions just as frequently at his colleagues.
Also notable: The court didn’t say whether the justices participated in arguments from their homes or offices or elsewhere. But Justice Ruth Bader Ginsburg, the court’s oldest member, joined one day of arguments from a hospital. Ginsburg, who’s 87, was in the hospital being treated for an infection that was a result of a gallstone.
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THE TECHNOLOGY
The telephone format itself was occasionally challenging for the justices. Chief Justice John Roberts kept arguments moving by letting his colleagues know when their time to ask questions was up and calling on the next justice. Occasionally he had to skip a justice who didn’t answer immediately. Justice Sonia Sotomayor apparently forgot to take herself off mute on the first day of arguments, and the chief justice called her name twice before her voice was heard. The same thing happened on the second day. “I’m sorry, chief,” Sotomayor said. “Did it again.”
Phone arguments also took longer than arguments held in the Supreme Court chamber. In the courtroom, arguments in cases generally last an hour. But by phone, on days when the court heard two cases, arguments were sometimes three hours or more.
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‘THE FLUSH’
One mystery the telephone arguments produced: Did listeners hear a flushing toilet during the third day of arguments?
Late in the arguments that day, in a case about a federal law barring robocalls to cellphones, there was an unexplained gurgling noise as lawyer Roman Martinez was responding to a question from Justice Elena Kagan.
Comedian Trevor Noah joked on “The Daily Show”: “If you’re on a call with Ruth Bader, flush it later.”
There was no word from the court on what exactly happened or, if it was a toilet, who may have flushed.
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THE FUTURE
The biggest question beyond how the cases the court heard will come out is whether the experience of hearing arguments by phone, with audio broadcast live, will change the tradition-bound court in any way.
The justices had previously resisted allowing audio of their proceedings to be broadcast live, though they have, on very rare occasions, allowed audio to be released the same day. Instead, before the coronavirus pandemic, transcripts of arguments were released the same day. Audio was released on the Friday after arguments.
