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Editorial: Stop experimenting with Supreme Court live audio and make it the norm

Supreme Court Justice Clarence Thomas participated actively in oral arguments that were livestreamed in May.
(Charles Dharapak / Associated Press)

For years the Supreme Court has resisted calls to let the public outside the courtroom listen in on its oral arguments. But live audio streams finally became a reality in May when the coronavirus pandemic forced the justices to hold two weeks’ worth of arguments in telephone conference calls.

The justices’ decision to livestream those arguments was a dramatic departure from their usual practice of posting the recordings on the court’s website at the end of the week, when public interest and news coverage have ebbed.

The experiment was a success. Simultaneous broadcasting didn’t undermine the decorum of the court, nor did it lead to the nightmare scenarios of grandstanding lawyers or sensationalistic news coverage. Instead, the immediacy of the audio made it possible for ordinary citizens to follow the justices’ questions — in which they sometimes tip their hands — and the lawyers’ responses.

The cases argued in May were unusually newsworthy, dealing with among other issues subpoenas for President Trump’s financial records, freedom of religion and the timely question of whether members of the electoral college can be punished for voting for a presidential candidate who didn’t finish first in their state’s balloting. But arguments even in less dramatic cases can serve to educate the public.

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Now media and advocacy groups are urging the court to make the livestreaming of oral arguments permanent. In a letter to Chief Justice John G. Roberts Jr., groups including the Society of Professional Journalists, the National Press Foundation and Fix the Court wrote: “Real-time broadcasts not only give the public direct access to an engaging, intellectual bench; they also diminish the ability of partisan interests to color a case in ways that serve narrow ends.”

Ideally the court would go even further and install television cameras in the courtroom, allowing the public to see arguments as well as hear them. Given the justices’ skittishness about cameras, that seems unlikely in the near future. But if these unflappable jurists can adapt to live audio, they ought to be able to conquer their cameraphobia.

One other innovation worth preserving in some form post-pandemic: Because the lawyers and justices were participating remotely, the court did away with the usual free-for-all approach to justices posing questions during oral arguments. Instead, Roberts called on the justices in order of seniority, a more decorous process that moved Justice Clarence Thomas to abandon his usual silence on the bench and participate actively in questioning.

A PSB poll conducted for Fix the Court earlier this year found that 70% of respondents supported continuing live online access to oral arguments. They’re right. While the justices deliberate in private, oral arguments offer an invaluable window on their thinking. Interested citizens shouldn’t have to wait for another public health emergency to be able to follow what are, after all, public proceedings.


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