The coronavirus pandemic has forced a change at the Supreme Court that justices have long resisted: live audio of the court’s oral arguments, including President Trump’s legal battle to prevent congressional committees and a New York prosecutor from obtaining his financial records.
Supreme Court Public Information Officer Kathleen Arberg said audio of the teleconference hearing will be released through a network pool, and thus immediately available on media platforms. She said it is not likely to be posted live on the court’s website because of concerns over the site’s capacity to handle a high volume of users.
However, the court expects to post the audio on the same day the arguments are heard, she said.
What might sound like a simple technological advance to the rest of the world marks a stunning change at the Supreme Court, where cameras are not allowed and justices have resisted repeated calls for live audio of oral arguments.
The sessions are the only times the justices discuss cases in public, and those who want to hear them in real time must vie for one of a coveted few spots in the courtroom. Members of the public often camp out for days to attend oral arguments in major cases.
The court announced the change in a news release.
“In keeping with public health guidance in response to COVID-19, the justices and counsel will all participate remotely,” the statement said. “The court anticipates providing a live audio feed of these arguments to news media. Details will be shared as they become available.”
That would eliminate a concern some justices have cited in opposing the live broadcast of arguments: the threat of disruption in the courtroom that would violate the court’s normal decorum.
But groups and individuals who watch the court see potential for lasting change.
Dan Epps, a law professor at Washington University in St. Louis and former Supreme Court clerk, tweeted: “Once the Court does this once and the sky doesn’t fall, it will be hard to justify not providing live audio for arguments in the future.”
While state supreme courts in Texas and Kansas last week held oral arguments via video conferencing, the Supreme Court will not go that route. Lawyers representing their clients will not be able to see the justices.
The court normally concludes oral arguments in April, so that it may concentrate on opinion writing before its normal conclusion at the end of June. It is unclear whether that usual deadline will still hold. The court’s news release said the justices would hold argument sessions on May 4, 5, 6, 11, 12 and 13.
The justices last met in public on March 9. They have since issued opinions on the court’s website. They have met in private conference via teleconference, with only Chief Justice John G. Roberts Jr. in the room where justices gather to discuss the court’s business.
The court said a schedule of which cases would be heard on the May dates will be released after consultation with advocates.
Lawyers in cases accepted by the court but not selected for the May hearings said they have been told that the court would hold oral arguments early in the term that begins in October, rather than decide the cases without oral arguments.
That could have an impact on whether another big case — a third effort to strike down the Affordable Care Act, this time from conservative states and the Trump administration — will be heard before the presidential election.
The court did not say how it decided which cases to hear and which to delay. Among the cases not making the cut was a long-running $9 billion copyright battle between Google and Oracle.
The cases sure to draw the most attention are the ones involving Trump.
Manhattan District Attorney Cyrus Vance Jr. and three Democratic-led congressional committees have won lower-court decisions granting them access to a range of Trump’s financial records relating to him personally, his family and his businesses.
The court in December accepted Trump’s request to review the decisions.
The justices will hear another time-sensitive case. It involves whether presidential electors can be required to honor their state’s instructions to vote for the candidate who wins the state’s popular vote. In many presidential elections, a handful of members of the electoral college — “faithless electors,” detractors call them — have voted for other candidates.
States had urged the court to decide the issue now, while it is unclear how a ruling would affect a specific candidate in the fall elections.
The court also will hear arguments in a case that it failed to reach agreement on last term, when it was heard by eight justices. It concerns whether much of Oklahoma should still be considered part of an Indian reservation, an issue with broad implications for how crimes there are prosecuted.
And it has scheduled two cases of importance to religious conservatives. One concerns which employees of religious schools are exempt from federal anti-discrimination laws, and the other involves an employer’s responsibility to provide women with birth control access under the Affordable Care Act.
Beyond those, the court has heard arguments, but not ruled, on other major cases: a challenge to a restrictive Louisiana abortion law; whether federal laws protecting workers apply to LGBT employees; and whether the Trump administration moved unlawfully to shut down the Deferred Action for Childhood Arrivals (DACA) program, which protects those brought illegally to this country as children.