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The World Did Not End

The U.S. Supreme Court’s first attempt at broadcasting oral argument audio live went swimmingly on May 4. Someone must've forgotten to cue the fire and brimstone.

Remind me — why they haven’t been doing this all along?

Concerns over technical glitches proved to be overblown. Justice Sonia Sotomayor was on mute for an extra moment during her first round of questions and Justice Stephen Breyer at one point had a few seconds of raspy audio. But that was it, as tens of thousands of Americans finally had the opportunity modern technology has afforded us for decades to listen to the country’s top jurists weigh in on a case, live and unfiltered. The days of restricting the court's proceedings to VIPs, the press and a few dozen members of the public are over.

Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we're past the pandemic.

Patent Office Led Off

After Chief Justice Roberts called the first case, Justice Department attorney Erica Ross, representing the U.S. Patent and Trademark Office in PTO v. Booking.com, began the historic arguments by citing a 2nd U.S. Circuit Court of Appeals patent opinion by Judge Henry Friendly — for whom Roberts clerked — with two minutes, 21 seconds of uninterrupted time before Roberts broke in with a question about the trademark statute. After all nine justices asked questions, Lisa Blatt, arguing for Booking.com and who was speaking from a lectern atop her dining room table, The Washington Post reported, kicked her turn off by discussing the situations under which generic words may be trademarked. Roberts broke in after two minutes, 18 seconds.

Ross and Blatt — skilled SCOTUS advocates both — parried the queries with a style both conversational and intellectual that made it clear why this argument was chosen to be the first one ever live-streamed. Even Justice Clarence Thomas, who’d previously only asked questions in two oral arguments since 2006, asked questions of both attorneys. During the 77-minute exercise, Justice Elana Kagan asked the most queries with six, followed by Roberts, Neil Gorsuch and Ruth Bader Ginsburg with five apiece. No justice asked fewer than two questions.

One could make the argument that the typically boisterous bench was more subdued than usual, given Roberts’s role as traffic cop. Our research indicates that the public would see that as but a small concession to make given the overwhelming support for real-time streaming.

A link to an audio file of the argument is expected to be posted on SupremeCourt.gov shortly, which makes this not only the first live argument but also the 28th for which an audio recording was provided to the public on an argument day.

To our disappointment, though, Roberts went right into argument after the marshal’s cry, whereas courts that have offered expanded broadcast access have chosen to explain to those listening live what they were about to hear.

Some appellate judges who have live-streamed arguments from their courtrooms were quick to chime in with some encouragement, albeit cheekily. Chief Justice of the West Virginia Supreme Court of Appeals Beth Walker tweeted: "Congratulations, SCOTUS, on broadcasting the audio of oral arguments live today. The Supreme Court of Appeals of West Virginia has been doing it since the late 1980s."

Fix The Court surveyed the 50 states’ top courts and the 14 U.S. Courts of Appeals and found that, as of today, 29 of the former and 13 of the latter (all but the 1st Circuit) have conducted remote arguments since the president declared a national emergency on March 13. Another 10 state supreme courts plan to go remote in the coming weeks.

The most popular argument format we found was similar to what the Supreme Court followed: attorneys uninterrupted for a certain number of minutes, followed by rounds of questions from judges in order of seniority, with the chief sometimes waiting to go last. For example, when the D.C. Circuit conducted remote en banc arguments on April 28 on whether the U.S. House may compel testimony from executive branch officials, for which a live audio feed was provided to the public via YouTube, Chief Judge Sri Srinivasan gave each attorney three minutes for opening statements followed by questioning by the eight other judges in order of seniority, though Srinivasan himself waited to ask questions until the end. Judges were then given a second round of questions before moving to the next attorney’s opening statement, and attorneys were allotted a brief time for rebuttal.

A three-judge panel in the 10th Circuit, meanwhile, was “not planning to stream [its April 30] arguments since that would just complicate our first attempt at completely remote arguments,” according to a court source. “But then we decided to follow the approach the D.C. Circuit uses,” regarding timing and questions, which worked well and will again be employed for this week’s arguments. This format was also followed by the Massachusetts Supreme Judicial Council for its remote arguments on April 6.

Different Courts, Different Formats

It remains an open question whether the format the Supreme Court has adopted for remote arguments this week will stay the same throughout the May sitting. The Chicago-based 7th Circuit, for example, decided that after a handful of telephone-only arguments in April, some of its hearings this month may take place over Zoom. The Supreme Court of Ohio also moved to Zoom last week after the initial video platform it used was so “awful” that they “only posted the audio,” according to a court source.

With live remote arguments having been successfully conducted in 11 of 14 U.S. Appeals Courts (all but the 1st, 3rd and 6th Circuits), the argument could be made, to paraphrase Justice John M. Harlan’s famous dissent in Estes v. Texas, that the day has come when live audio “will have become so commonplace an affair [...] as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.”

Gabe Roth is executive director of Fix the Court, a nonpartisan watchdog group focused on “fixes” to make the federal courts more open and accountable.