The People’s Court: Live-streaming the Supreme Court

Photo by Phil Roeder via Wikimedia Commons

The chamber of the Supreme Court of the United States is a strange and mythical place. Many have seen it, but relatively few have experienced the justices in action. The proceedings are open to the public, of course – if you can find a seat; only the first 50 members of the general public in line will get a ticket to observe oral arguments. If you are a lawyer admitted to the SCOTUS bar, there’s a separate, shorter line for you, and preferred seating, closer to the bench. The public may also get a “three minute” ticket which, as the name suggests, will allow you to observe three minutes of arguments and then move on. Even the cases the average person cares nothing about draw packed benches. Still, the Court has stubbornly eschewed technology that would broadcast their proceedings live to the masses.

Well, until now. COVID-19 has changed a lot of things in our country; our high court has not been immune. First, the Justices began working from home in March, with some some remotely attending the private conference where cases are chosen. Oral arguments in active cases were postponed. When it became apparent that the quarantine was going to be long term, the Court announced that arguments would proceed via teleconference- and would be live-streamed for the public everywhere to listen.

The first remotely-heard case was called on May 4th at 10am. They did not dispense with the pageantry; the marshal announced the Court formally with the traditional “oyez, oyez, oyez.” This recording of Alfred Wong, SCOTUS marshal from 1976 to 1994, gives me chills:

The first remotely argued case turned out to be an intellectual property case, Patent & Trademark Office v Booking.com, which was likely of interest to only a small subset of people. But it should be remembered as a landmark case nevertheless, marking the first time more than a handful of the American people could witness the workings of our high court live.¹ It went rather well, though there may have been some of the usual teleconference gaffes such as live mics that should be muted and vice versa. And then there was this, during the arguments of the third case the Court heard remotely.

Possibly this development is not as thrilling to some folks as it is to me. And it is likely the case that most of the matters argued before the Court would be agonizingly boring to folks. But if people would listen now and then, there is so much they could learn from the lawyers’ arguments and the justices’ questions. It would add worlds of context to Twitter hot takes and emotion-laden knee-jerk responses to headlines which lack all nuance. People would be better off realizing how often a decision rests on a legal technicality or procedural element, as opposed to the merits of a particular position. It’s part of why I do a “case of the week” in Wednesday Writs, or write up a newly published opinion; mostly only legal nerds like me read the actual opinions, and so often the boiled down “Court Rules in Favor of…” headlines are misleading.

The lawyers who end up arguing before the Supreme Court are, by and large, at the top of their profession, skillswise. Chances are, if you listen to their arguments, you will find yourself thinking “that’s a good point” when the attorney for “the other side” of an issue speaks. If nothing else, it may make you rethink and reframe your own opinion, and perhaps sharpen your own debate skills so you can be victorious in your next fight in the OT comment section.

I am not a litigator anymore and unlikely to ever argue before the Supremes. I did argue at the Fourth Circuit once and prevailed, and I’m happy to go out of the game with a 1-0 federal appeals record. Nevertheless, I intend to gather the three sponsors and $200 necessary for admission to the SCOTUS bar. Mostly, this is so that when the justices return to the bench, I can make my pilgrimage to that strange and mythical place.

And get in the short line for the preferential seating.

1. Recordings of arguments have long been available after the fact, though prior to the internet they were seldom accessed.