Oral Arguments at SCOTUS During Quarantine

Guest post by Amanda Watson, Director of the O’Quinn Law Library and Assistant Professor of Law.

“It’s the way we’ve always done it.” Law librarians, like most people, are generally creatures of habit. It isn’t surprising, since so much of our work is understanding, and even translating how things work.

The United States Supreme Court hears around 80 oral arguments a year. For about half the year, lawyers travel to the prestigious columned building to answer questions from the Justices. It is a career highlight for those lawyers, who sometimes commission artists to create images of them in front of the iconic bench.

Spring of 2020 has been a time of many challenges to “the way we’ve always done it” because of the response to COVID-19. The oral arguments are no different. In an April press release, the Court announced they would hear oral arguments by telephone conference.

The Supreme Court bench is known for being very active. It was difficult to imagine how that would translate to a telephone conference because the lawyers nor the Justices would see the nonverbal cues so important to the back and forth of the usual argument.

Why did the Court decide not to use video conferencing? As SCOTUSblog put it, it would be hard to “put the genie back in the bottle” after the COVID-19 restrictions are lifted. Whatever method was used would certainly set an unofficial precedent for future arguments.  Some Justices have said that a video conference would turn into an event, with lawyers trying to create news-worthy quips instead of focusing on advocating for their clients. Audio recordings have been provided (with a delay) since 1955, so providing them as a live stream was a more modest innovation.

The telephone conference arguments started in early May and provided both live and archived versions to the public. The arguments have been very orderly. The most surprising feature turned out not to be the live stream or mechanics of telephonic communication, but that the usually quiet Justice Thomas asked questions, and that a toilet flush was heard during one argument when someone forgot to mute their telephone. All in all, telephone conferences have been a success while not changing that much about the future of arguments. They are not the way we’ve always done it, but they likely will allow for an easy transition back to the way we’ve always done it when COVID-19 restrictions are relaxed.

Assistant Director, Research and Instruction, at Boley Law Library, Lewis and Clark Law School, in Portland, Oregon.

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