Over the next two weeks, the Supreme Court will be heard “live” doing its work for the first time in history, but the television audience will not actually see the Justices, their courtroom, or the lawyers appearing to present arguments. This will be an audio presentation only, of six days of hearings, some involving highly controversial and very important cases. They will be available via TV by turning in to the C-Span network, starting at 10 a.m. and running until about noon Monday through Wednesday in the coming week and in the following week. Other networks, too, will be able to carry them.
What is at stake legally is very real, to those directly involved in the cases and to the development of law, but this will not be the “real” Supreme Court in important ways — some obvious, some obscure.
Most Americans, of course, have never seen — nor heard — the Court as it holds public hearings, or as it does any other part of its actual work. Alone among the three branches of the national government, and alone among many other, lower courts, the nation’s highest court has never been broadcast “live.” TV cameras are never allowed during the Court’s hearings (and won’t be there this time, either), and its audio recordings ordinarily cannot be heard as they occur, only later (that is changed this time). The next two weeks will be historic and novel, and that is happening because the Justices do not think it would be safe or healthy to actually sit together as the nation still battles the corona virus pandemic. In fact, Washington, D.C., continues to be one of the “hot spots” for new virus cases. Much of the city is still on lock-down.
But once the pandemic is over, perhaps by the time the Court begins a new term next fall, it is not at all certain that this rare experience will be repeated, even in the limited audio form being presented this week and next. Some observers of the Court’s work have anticipated that, once the Court has allowed itself to be presented “live,” there will be no going back to the old way. The Justices have changed that approach for two weeks, but the strong likelihood is that they are doing so merely as an expedient, not as a test of what the future is likely to bring.
There probably will be technical glitches during the audio presentation on those six mornings, with everyone involved communicating via their own telephone, and doing so in a potentially awkward “take-your-turn” sequencing. But it is not a deep-seated aversion to new technology, nor an anxious fear of public embarrassment, that keeps the Court wedded to the old way. It is, simply put, a belief among most of the Justices that there is genuine virtue in avoiding the spectacle of televised proceedings. They have heard all of the arguments about how many other courts do their work in front of TV cameras, and they have digested all of the complaints that they are just backward, out-of-date, or smug. Tradition is valued as part of a purposeful attempt to maintain respect for the Court, so that its decisions — especially its most controversial rulings — will be accepted by the public. The Justices tend to equate the Court’s reserved character, lending to it some mystique, with public acceptance of its legitimacy.
It may well be that the experience of the next two weeks will have the effect of actually making the Court even less likely to change in its view of “live” proceedings. It will be, in fact, temporarily setting aside some of its most cherished customs, and that will be a reminder that this will be only a time-of-crisis necessity.
What are those traditions; how will the next two weeks vary from the norm?
Most significantly, each of the hearings will be anything but the lively, free-form seminar that is customary. Usually, once Chief Justice John G.Roberts, Jr., announces a case to be heard, the floor is open to all nine Justices, and any lawyer who comes with the idea that he or she will be able to make the case without interruption will be disappointed quite quickly. The Court now has a practice of leaving the lawyer alone to speak for two minutes at the start, but what follows always will be rigorous and challenging exchanges, and even the most experienced advocate will be pressed to keep up.
It won’t be like that in this round of hearings. The Justices will ask questions in order of seniority, with each asking what he or she wants, uninterrupted by anyone else, so the lawyer gets to focus on only one Justice at a time. It will seem more orderly, and very likely will seem stilted — two-way exchanges instead of multi-layered discussions. No one sees anybody else who is involved, so forget the notion of reading faces to get hints of where the proceeding is going.
What will be lost in that format is what is surely one of the most important reasons the Court holds hearings at all. Held in the customary way, they provide the first occasion, literally, when the Justices have a full and unchecked opportunity to discuss the case among themselves, through the medium of their exchanges with each other and with the lawyers. A hearing provides the best opportunity for the Justices to try to set the agenda for how they will talk about the case when they go back behind closed doors to deliberate and decide the outcome and start writing the opinions. It is not that the lawyers at the lectern are unnecessary, but they frankly are not a great deal more than bit players in the actual drama.
Of course, once the Court gets back to normal times, it could still carry out its hearings in that robust way even if it were to introduce cameras into the courtroom. But most of them do not believe that it would be the same, and at least some of them — probably a majority — think the resulting images on TV would be mere spectacle. The fact that this is the last-resort Court, the final rung on the judicial ladder with the awesome power to say what the Constitution means, gives it a solemnity that no other American court has. Some Justices, no doubt, do tend to think that many of the cases are technical enough that the public would have trouble following the meaning, or at least could easily lose interest.
Two of the highest-profile cases scheduled to be heard in this audio format, on Tuesday, May 12, could illustrate the point. Those two cases are about whether the Court will require the disclosure to Congress or to a state criminal prosecutor in New York of years or President Trump’s private financial records. Even if that ultimate issue is easy to understand, those cases also are likely to feature arcane arguments about whether the courts have any authority to decide the disputes. But that question exists in only the congressional cases, not the state prosecutor case — another layer of complexity.
Take another example: on Wednesday, May 13, the Court will hear back-to-back cases on how the nation’s Electoral College works. Many Americans, of course, know that Donald Trump is now the President because he won the most votes in the Electoral College in 2016 even though he lost the national vote total among the citizens. But that’s not the issue: the case focuses on how, or whether, each of the 50 states can control how their state’s electors vote in the College, and whether electors who disobey can be punished. That involves a lot of American history, not all of it plain or simple, and some pretty deep philosophical questions about political representation.
There probably is only one other hearing in this two-week sitting that most of the listening public would find interesting, but it, too, is not simple. Set for hearing on this coming Wednesday, May 6, it involves the part of Obamacare, the Affordable Care Act, that requires employers to provide birth control to their female workers of child-bearing age. Basically, the issue is whether the Trump Administration acted illegally when it gave religious organizations, such as charities, hospitals and colleges, a broad exemption from that mandate, and, separately, whether the Administration acted illegally in creating a brand-new exemption from the mandate by employers who have moral, but not religious, objections to birth control. A complicating issue, though, is the method the Administration used in putting the new exemptions into effect.
Even if the listening public fully comprehends the technical issues or sub-issues as the Justices and lawyers explore them, listeners will have to keep what one Justice says in mind when another Justice takes a turn, to see if they play off of each other or contradict each other; there likely will be no such thing as a continuing thread unless the Justices suddenly become more regimented that they usually are. Some listeners may tune in just because this is going to be historic, but the chances that the proceedings will create great ratings are rather slim, it appears.
Not least of what will be missing is the Court’s grand courtroom — at least that part of it that those who get seats during customary hearings have, or that part that would be seen if the Justices were, in the future, to allow cameras in the courtroom. The scene, up close, can be awe-inspiring, and the sight surely adds to the solemnity. TV producers surely will attempt to do some creative graphics to relieve the potential monotony of mere voices, but that won’t be the same. Indeed, the lack of live images of the grand courtroom itself might encourage those who want cameras in the courtroom to apply even more, unwanted, pressure on the Justices to go the whole way and permit live TV video and audio of future hearings.
Will a listening public, many of whom are stuck in their homes because of the virus and so do have the time to tune in, be genuinely uplifted — or, perhaps, even entertained — by this audio performance? Maybe not, but teachers of civics will have something new to with when schools open again. And the debate about televising the Court’s future hearings will go on, probably without changing the Court’s mind.