WASHINGTON - The United States Supreme Court will make history Monday.
Not, this time, with an epoch-making ruling but with its embrace of heretofore shunned technology and transparency.
For the first time in its 231-year history, the high court's famously camera-shy and tech-averse justices will conduct — and livestream — oral arguments by teleconference, the first of 10 cases scheduled in this fashion for May due to the coronavirus pandemic.
Rather than risking exposure to the deadly pathogen, the nine justices, competing lawyers, court officials and members of the public will be able to participate in or observe the court proceedings from the comfort and safety of their homes or offices.
Monday's case itself is of minimal public interest. It involves a legal dispute between the U.S. Patent and Trademark Office and the online reservation service Booking.com over whether the generic-sounding name can be registered as a trademark.
While conducting oral arguments by teleconference is a new experience for the justices and lawyers, of far greater significance is the court’s historic decision to open up its deliberations via livestreaming.
'Big moment for the court'
“This is a big moment for the court,” said Adam Feldman, a professor at California State University who runs a popular blog about the Supreme Court.
Oral arguments during which lawyers representing parties to a dispute present their case and field the nine justices’ questions were previously the only public part of the Supreme Court’s decision-making process.
Although the court releases transcripts of the arguments the same day and posts their audio recordings at the end of the week, it has spurned calls from transparency advocates and members of Congress to broadcast or livestream its deliberations, with some justices arguing it would change court dynamics and encourage lawyers to play to the cameras.
No more waiting
The result has been that most members of the public don’t get to hear the arguments in real time. Depending on the case, spectators have to wait anywhere from five hours to five days to secure one of 50 seats reserved for the public, according to Gabe Roth, executive director of Fix the Court, which advocates for greater court transparency.
As Roth put it on his website, “all it took was a global pandemic” for the court to change its entrenched ways of doing business.
The pandemic has shut down much of the government forcing most federal appellate courts to conduct remote hearings with live audio access for the public. The Supreme Court initially postponed its March and April argument sessions before announcing in late April that it would conduct arguments in 10 cases by teleconference.
Three cases involve Trump
While most of the postponed cases were not time-sensitive, several apparently could not be delayed further. Among them are three cases involving efforts by House of Representative Democrats and New York prosecutors to gain access to President Donald Trump’s financial records.
“The court was caught between a rock and hard place,” Feldman said.
The justices scheduled the trademark case as a dry run of sorts for the first day to work out the kinks in the new system, according to court watchers. Before they’re patched into the teleconference at 10 a.m. EST, lawyers for the two sides will call in for any last-minute questions for the court clerk. The marshal will then open the session with the traditional cry of “Oyez, oyez, oyez.”
Lawyers for the government and Booking.com will have two minutes of speaking time before justices begin questioning. Chief Justice John Roberts will ask the first question, a rarity for him, followed by the second-most-senior member of the bench, the famously laconic Justice Clarence Thomas, who has asked all of two questions in more than 14 years.
Breaking with tradition
This is a marked departure from the traditional format where any justice can interject at any time during oral arguments. Feldman said the justices will likely try to get a feel for the new format rather than hastening to ask questions.
The court said on Thursday that it would provide a live audio feed of the arguments to three outlets, including C-SPAN, the public affairs channel, to carry on various platforms, allowing many more people to listen in. The court hasn’t indicated whether it would continue with this practice.
The Supreme Court is the sole branch of the U.S. government whose proceedings are not broadcast. C-SPAN regularly airs key congressional hearings and floor action while the president’s news conferences and other remarks are widely carried live.
When it comes to transparency, the Supreme Court also lags behind its counterparts in other democracies. The supreme courts of Canada and Britain have been broadcasting arguments for nearly a decade, while other countries have started live coverage more recently. Critics say this insularity also undermines public trust.
“If we can’t see it, how can we trust it?” Roth said.
Will changes stand test of time
Roth said that while he understands the argument against allowing cameras in the courtroom, he finds the reasoning against audio streaming less persuasive given that several federal appeals courts have been providing it for years. With growing pressure for court openness, Roth added, the court will likely continue livestreaming even after the pandemic crisis abates.
“I think that once the justices catch up, I don't see them going backwards,” he said.