Live From D.C., It’s the Supreme Court!

https://www.nytimes.com/2020/05/04/opinion/supreme-court-coronavirus-telephone.html

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“Justice Sotomayor? … Justice Sotomayor?”

The query hung in the staticky silence for what felt like an eternity, although it was probably less than 10 seconds. It sounded like any delay on any of a million conference calls happening daily across America during the coronavirus pandemic.

Only this question was coming from the chief justice of the United States, John G. Roberts Jr., who was trying to locate his colleague Justice Sonia Sotomayor during the Supreme Court’s first oral argument to be held over the telephone. The hearing was also broadcast live to the world, another first. Various scenarios presented themselves: Perhaps Justice Sotomayor had lost her connection to the call. Perhaps she was making a sandwich and had forgotten to unmute her phone.

Suddenly her voice came crackling through the line. “I’m sorry, Chief,” she said, before turning to interrogate Erica Ross, one of the lawyers on the call.

In normal times, the court’s routine on argument days is as strictly choreographed as a religious service — the lawyers waiting patiently at their tables, the great hall filled with hundreds of members of the public, all sitting dutifully on long wooden benches, whispering to one another, until the buzzer sounds at 10 a.m. on the dot, and everyone rises as the justices emerge from behind a curtain to take their assigned seats.

So it was tempting on Monday morning to imagine where, exactly, everyone was. Were the justices sitting on their respective living room couches, clad in black bathrobes? Were the lawyers standing at lecterns built of empty Amazon boxes, speaking to cutouts of the justices taped to the fridge?

Like so much else that we thought would never happen and yet suddenly has, it was an unprecedented moment. It was also, as Supreme Court arguments go, largely forgettable. Monday’s case, U.S. Patent and Trademark Office v. Booking.com, involved the question of whether a business could trademark a generic name by adding “.com” to the end of it — not an issue that galvanizes the American public. (The justices are hearing seven more arguments over the next two weeks.)

Following the marshal’s customary introduction of the justices — “The honorable, the chief justice and associate justices of the United States Supreme Court. Oyez, Oyez, Oyez!” — Chief Justice Roberts began speaking, his voice slightly tense and echoing. The discussion among the justices and the lawyers for both sides then veered quickly into what Justice Antonin Scalia, arguing against live broadcasts about four years before his death, called “all sorts of dull stuff that only a lawyer could understand and perhaps get interested in.”

Anyone who wasn’t turned off by the arcane topic of trademark law might have been by the less-than-ideal sound quality, which, as with much about the Supreme Court, was both charming and irritating. There’s no magic to streaming oral arguments live; federal appeals courts and state supreme courts around the country have been doing it for years.

The nation’s highest court, however, has steadfastly resisted. Its only concessions to 21st-century technology have been to release same-day transcripts of oral arguments on the court’s website and audio recordings of those arguments at the end of each week.

It’s especially frustrating because every current sitting justice previously supported broadcasting arguments, but all overruled themselves after joining the court. “The day you see a camera coming into our courtroom, it’s going to roll over my dead body,” retired Justice David Souter once told a House subcommittee.

And yet Justice Souter lives.

“It’s incredibly overdue,” said Gabe Roth, executive director of Fix the Court, a nonprofit that has pushed for the justices to broadcast the arguments live. “It’s not that hard. I think maybe it’s a generational thing, but the Supreme Court is finally realizing that this is a very basic and well-understood way that government officials interact with and give access to the public.

“I’m just hopeful that the justices themselves have a positive reaction to it, because it’s going to be a little different for them as well.”

Alas, Chief Justice Roberts seemed intent on acting as though nothing was out of the ordinary. He kept the arguments moving at a brisk clip, interrupting the lawyers regularly to ensure that each justice had a chance to speak. Even the famously silent Clarence Thomas asked questions, which he has now done only three times in the last decade. Hearing his rumbling baritone in real time was as jarring as the fact of the broadcast itself.

Monday’s arguments raised another question: Is the Supreme Court a place or a process?

On one hand, it’s oddly powerful to hear the often-dreary business of government being conducted live, even though we have been watching the other branches do it for decades.

Even if most Americans have neither the time nor the desire to listen to hourlong legal debates, “at least we should have that opportunity as taxpayers in a democracy,” said Mr. Roth. “If you have a public exercise of public officials and modern technology affords the ability to hear them live, that live access should not be withheld.”

After listening to the arguments on Monday, it was hard to see what the big deal was.

On the other hand, I sympathize with the justices’ ambivalence. Having attended many arguments over the past seven years, I know the irreplaceable quality of watching justice play out live in a room filled with people — a physical space where we go to resolve our disputes without resorting to violence.

The court’s authority, and thus its power to command obedience, derives in part from its mystique, which explains why its members have so jealously guarded their distance. Will that authority be diminished when all Americans are able to listen to the justices doing their job in real time, on scratchy conference calls stripped of the pomp and grandeur of the courtroom?

On balance, I think not. There are plenty of ways for the justices to convey the gravity of their role even in these changed circumstances. Before Monday’s argument, Mr. Roth was hoping Chief Justice Roberts would take this rare opportunity to offer a brief civics lesson to Americans — “to explain rules of the game,” as Mr. Roth said.

For example, when the justices interrupt the lawyers, as they often do, “they aren’t trying to be mean, or to make the lawyers look silly.” Chief justices and judges on other courts have done this to good effect, Mr. Roth said. “Most Americans’ understanding of court is from TV, which is almost always trial courts.” But in the Supreme Court, as in all other appeals courts, “there’s no jury, no swearing in of witnesses.”

As it turned out, Chief Justice Roberts made no acknowledgment of the situation, offered no national civics lesson.

In fact, a person reading the transcript would have no indication that anything was amiss, with the possible exception of a comment by Lisa Blatt, a veteran of the Supreme Court bar who was representing Booking.com. “I have searched every grocerystore.com looking for toilet paper,” Ms. Blatt told the justices at one point. (“The last time ‘toilet paper’ was mentioned in a #SCOTUS argument was 1987,” tweeted Tony Mauro, a longtime Supreme Court correspondent for The National Law Journal.)

In the end it was left to Justice Stephen Breyer, among the chattiest and most informal of the justices, to inject some humanity into the proceedings. After beginning his first question to Ms. Ross, the government’s lawyer, he stopped himself, gave a laugh and said, “Good morning, anyway!”

“Good morning,” Ms. Ross replied with what sounded, through the static, like a small sigh of relief.

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