What next for oral arguments?
on Mar 19, 2020 at 1:53 pm
Having indefinitely postponed its March oral argument sitting, the Supreme Court will need to develop a plan for these cases and those in the April sitting too. There are 20 oral arguments in question: 11 for March and nine for April. Because there is little relevant precedent, there is no way to predict what the court will do. In this post, I lay out what seems most likely and sensible to me.
Note that the question of how to handle oral arguments is not enormously consequential to the justices. The public pays a lot of attention to the court’s public sessions—including arguments—because they are the most visible parts of the court’s work. But they are the tip of the iceberg; almost everything is going on out of sight, below the surface. The court continues to process new cases and write opinions deciding existing cases, largely uninterrupted by the virus.
With respect to oral arguments, my premise is that it will not be possible for the court to hold its April sitting—at least as traditionally conducted. The current CDC guidance is that there should not be events of 50 or more people until at least early May.
I think the court will postpone ordinary public arguments for longer than that. The virus is a distinct threat to the health of the justices, because it is most dangerous for people aged 60 and older. It is extremely dangerous for those aged 80 and over who have prior medical conditions. More broadly, holding oral arguments creates risks for the court’s staff and the advocates.
For most of the March and April cases, the court does not need to take any risks. It has a strong preference for holding oral argument, and for doing so in monthly sittings from October through April. But these are not ordinary times, and no statute or rule requires it to do so.
There are three practical options, and the court does not have to take the same approach with every case. First, it can (and regularly does) decide cases on the merits without arguments. Second, it can continue to defer oral arguments indefinitely — including into the fall. Third, it can hold arguments without a public gallery.
There is a fourth practical option that I do not think the court will adopt: video-streaming oral arguments. For a variety of reasons, the justices do not want to adopt that practice. It also would not address the risk to the health of the justices, staff and advocates.
Some district courts and courts of appeals are using a fifth option: remote oral argument by audio or video conference. That is practical for arguments with one or three judges. But it is impractical for the Supreme Court, which has eight active questioners (all but Justice Clarence Thomas).
In thinking about these options, I presume that the court will not dramatically change its preference for holding oral arguments. There is no need. Argument in almost every case could be deferred until the fall without seriously affecting the court’s work or the administration of justice. But I do think the justices will show some flexibility in order to spread out their work between this term and the next one.
The court could go ahead and resolve roughly one third of the March and April cases without oral arguments. In cases that appear to be unanimous and in which no justice requests argument, it could prepare opinions. If it became apparent during the drafting process that oral argument would be useful, the case could then be heard next term.
That would be consistent with the court’s practice of deciding cases summarily when “further briefs and oral arguments would not materially assist in [the] disposition of the case.” The merits briefing in many cases reveals that the cases are straightforward: The court decides roughly one third of all its cases without dissent and with every justice joining all or part of the court’s opinion. One can assume that this will be true of the March and April cases as well.
In almost all the other cases, the court will want to adhere to its ordinary practice of hearing argument. But there will be no urgency to do so. For those cases, it could simply postpone arguments. It is possible that this public health crisis will resolve itself—for example, through the miraculous discovery of a vaccine—by May. But more likely, arguments would be postponed into the fall. That would not be out of the ordinary, as cases in which certiorari was granted in February already were going to be heard then.
There are four cases—raising two issues—in which the court is likely to conclude that oral argument is necessary and cannot be deferred so long. Two are the presidential tax return cases. (Technically, they are three cases, Nos. 19-635, 19-715 and 19-760, scheduled for two arguments.) Those have direct implications for ongoing congressional investigations of the president and an ongoing grand jury investigation.
The other two are the so-called “faithless electors” cases (Nos. 19-465 and 19-518). (These were originally scheduled for one hour of argument, but now are set for two because of the recusal of Justice Sonia Sotomayor from No. 19-518.) Those have direct implications for the 2020 presidential election, because they involve voting in the electoral college.
These four cases will require the court to navigate serious concerns of public health, the justices’ own health and the public’s access to the court’s proceedings. Here, I think the court is likely to hold oral arguments in April or May, but under unique and stringent procedures required by the circumstances.
The arguments in all four cases could be held on a single day: one set in the morning, and another in the afternoon. The public and the bar would be excluded. The core press corps—so-called “hard pass” holders—would be seated in the public section, separated consistent with “social distancing.” The table from which counsel argue would be moved several feet farther back from the bench. The audio would be released promptly after the argument, consistent with past practice in certain high-profile cases.
By May, testing kits for the virus should certainly be available for the justices and their essential staff. Even then, some members of the court may exercise their judgment not to attend the arguments. They would review the tape or transcript of the arguments instead. This would be consistent with past practice for health-related absences—for example, while Justice Ruth Bader Ginsburg was recently recovering from surgery.
I expect that before announcing these procedures, the court would consult with the advocates in the cases to gauge their comfort with holding arguments. This is an issue because most of them will have to travel from outside Washington, D.C. It seems likely that safe arrangements could be made by late May.
There is no apparent precedent for this precise approach to oral argument. But there also is no precedent for this situation at all. Among other things, the fact that the court can now release the audio recording promptly after an argument reduces concerns about public access to the proceedings, in this unique exigency.
In sum, there is no way to know how the justices will handle oral arguments in these circumstances. But a sensible approach—and my best bet—is that they will announce that the April argument calendar is generally deferred, set special procedures for the tax return and faithless elector cases (perhaps to be conducted in late May) and resolve several of the cases without holding arguments.
Disclosure: I am arguing counsel in one of the March cases, Google v. Oracle.