A lively debate is occurring about which pandemic-related emergency measures should be made permanent once things return to normal. Work from home? Online college classes? Televisits with the family doctor? Zoom cocktail parties?
My candidate: livestreaming of oral arguments before the U.S. Supreme Court, which occurred for the first time this month when the justices were hearing cases over the telephone.
Apparently a lot of people agree. Fix the Court, which campaigns for more transparency from the justices, is citing a PSB poll showing that 70 percent of respondents support continuing live online access to oral arguments, while 30 percent support a return to the court’s pre-pandemic practice of posting audio on its website on Fridays. (The arguments take place on Mondays, Tuesdays and Wednesdays, meaning that by Friday an argument is old news.)
As Fix the Court notes, there have been mixed reviews for another aspect of the court’s pandemic proceedings: an innovation in which Chief Justice John G. Roberts Jr. called on the justices to ask questions in order of seniority. The usual format is more of a free-for-all, though this term the court adopted a rule saying that lawyers could speak for two minutes before being interrupted.
Lyle Denniston, the longtime Supreme Court correspondent for The Baltimore Sun, complained on Twitter that the format “harms equal status of each Justice, gives the [chief justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, looks amateurish.”
Then there is the question of whether Roberts treated his colleagues fairly in managing the questioning, particularly whether he was evenhanded in cutting off questions by one justice and moving to another.
Leah Litman, a law professor at the University of Michigan, conducted a granular analysis of the arguments from the teleconferenced arguments. Although she concluded that Roberts “appears to have done a somewhat evenhanded job of moderating the questions, at least ideologically,” she also noted that “the three shortest questioning periods the chief [justice] allowed were for his female colleagues.”
I have to admit that I didn’t notice the gender disparities Litman cited when I listened to the arguments. And, to be fair, Litman acknowledges, even as she faults Roberts’ performance, that “this was the court’s first attempt at this new format, and a limited sample of only 10 arguments. And it is possible that if the format continues, the court will get better at it.”
Roberts, who is acutely conscious of the way the court is perceived, should take Litman’s comments to heart and aim to do better if the court decides to continue its pandemic questioning protocols once it returns to in-person arguments.
And it should do so. The take-your-turn format is preferable to the free-for-all that led to irksome interruptions, and apparently Justice Clarence Thomas agrees. Thomas long has been criticized for not asking questions at oral arguments, but he was an active and sometimes incisive questioner in the pandemic version. (“Thomas Speaks” seemed to garner the same attention as “Garbo Talks.” But Thomas’ participation in oral arguments isn’t just a novelty. It’s useful for both the public and for advocates in a case to know what’s on his mind.)
Whatever the court does about protocol for questioning, the other innovation it adopted because of the pandemic — livestreaming of arguments — must be made permanent. For citizens eager to follow the court’s public proceedings in real time, justices delayed is justice denied.
Michael McGough is the Los Angeles Times’ senior editorial writer, based in Washington, D.C.