The Court bowed to public health necessities last week [March 16] by postponing the March oral argument calendar with its 11 cases scheduled from March 23 through April 1. The postponed cases include President Trump's politically charged effort to block subpoenas for his financial records by a House committee and the New York City district attorney's office.
The nine other cases postponed include, among lesser disputes, Google's effort to block Oracle's high-stakes software copyright infringement lawsuit against the Silicon Valley giant. With the coronavirus pandemic still spreading, the April calendar with nine cases scheduled for courtroom arguments beginning on April 20 could be postponed as well.
The Court's press release announcing the postponement included the stay-tuned suggestion that it would "examine options for rescheduling those cases in due course in light of the developing circumstances." At this writing [March 21], the Court has not acknowledged suggestions from concerned Court watchers that oral arguments can be held with attorneys participating remotely or without a courtroom audience and livestreamed or posted on the Court's website on the same day instead of at the end of the week.
Nationwide, schools, colleges, and universities adapted to the social distancing guidelines announced by public health officials at all levels of government by shifting to online instruction. Instructors from elementary school teachers to law school professors adapted as best they could to teaching to computer screens instead of classrooms.
The Court has made some limited concessions to the new circumstances, but not enough to complete a full term's worth of decisions. The justices conferenced on Friday [March 20] as scheduled, with "some" of them participating by phone. The Court may issue decisions this week [week of March 23] but without the justices taking the bench. Opinions will be posted online, but the slip opinions ordinarily distributed to press and public will not be provided.
Court watchers dissatisfied with the Court's response so far include Gabe Roth, executive director of the reformist advocacy group Fix the Court. In a same-day press release, Roth called the postponement "a positive step" but took the opportunity to renew the group's call for greater public access to the Court's courtroom sessions.
"The Court would do well," Roth said, "to extend modern conveniences to the general public the next time it holds arguments so proceedings would be available live to those beyond the courtroom's walls. Providing remote access would protect the health of the justices and the public during the current pandemic and beyond."
Roth noted in the press release that the Court has the technological capacity to livestream its proceedings, as the Court did for the memorial service for the late Justice Antonin Scalia held in the Great Hall on Nov. 4, 2016. In a phone interview last week, Roth emphasized that the Court could use any of several remote conferencing technologies to hold arguments in April as scheduled or to reschedule the postponed March cases.
The nine cases on the April calendar include several of major import. Two cases, one from Washington and the other from Colorado, test whether states can penalize so-called "faithless electors" for casting their presidential ballots contrary to the state's popular vote The arguments are scheduled to end on April 29 with yet another case claiming a religious freedom exemption from the Affordable Care Act's requirement for employers to provide contraception coverage as part of employee health plans. "I do hope that they will hold arguments next month," Roth said. "It's important for the public to see or hear that the levers of government are still working despite a crisis."
To date, the Court has heard oral arguments in 48 cases, far fewer than a term's usual complement of 70 cases. If opinion writing is not delayed, those decisions will be issued a few at a time over the next three months until the customary rush of decisions in the final week of June. So far, the Court has been somewhat slow off the mark, with only 14 decisions issued through early March and none of them especially newsworthy for the general public.
The high-profile cases already "submitted" include the effort in two cases argued in October to extend federal job discrimination protections to LGBT individuals. Also pending since the fall is the Trump administration's effort to rescind the Obama administration's immigration policy to protect the so-called dreamers: "deferred action for children of Americans," known as DACA. More recently, the Court heard arguments in an important abortion-related case that abortion rights advocates fear could give states more leeway to enact regulations aimed at limiting access to abortion care.
Whatever course the Court takes in those major cases, the justices owe the public a full year's work. The Court also owes the litigants in the March and April calendars some measure of justice without further delay. Other federal appellate courts have conducted oral arguments remotely over the past two weeks; the Supreme Court should follow suit and, in the process, recognize the need to give the public greater access to their proceedings.
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