WASHINGTON (CN) — The Supreme Court announced Monday it will hear remote arguments beginning in May, tackling high-profile cases involving the federal health care law’s contraceptive mandate and President Donald Trump’s tax returns.
In response to the coronavirus pandemic, the court had delayed two rounds of arguments set for the end of March and April, pushing off some of the most highly anticipated and politically consequential arguments of its term. In the meantime, the court has held remote conferences on Fridays and continued releasing opinions and orders lists while the justices and most court staff works remotely.
Monday’s announcement of a live-stream for the news media only is an unprecedented move from an institution that has long resisted sharing arguments outside of the downtown Washington courtroom in real time.
Typically, the court releases audio from oral arguments at the end of the week and occasionally shares same-day audio for high-profile cases, though even that goes online after the arguments conclude. Those who are not members of the Supreme Court bar but still hope to catch the justices in action often wait in line outside the court — sometimes overnight — but are not guaranteed a seat in the courtroom.
The court will hear arguments on six days spread across two weeks, roughly in line with its normal schedule. With some cases consolidated, the court will have 10 total rounds of oral arguments, with first the session taking place from May 4–6, and the second coming a week later.
In addition to an appeal over the contraceptive mandate and multiple cases between Trump, congressional committees and a New York prosecutor over subpoenas for the president’s personal financial and tax records, the court will hear arguments in a case over whether teachers at religious schools can sue their employers for discrimination and a trademark dispute involving travel site Booking.com.
The court also will hear arguments in a case that asks whether electoral college voters must vote for the presidential candidate who earned the most votes in their state.
Before assigning specific dates to the cases, the court said the arguing attorneys should share their availabity.
Neal Katyal, who served as acting solicitor general in the Obama administration, backed the decision to hold remote arguments. But Katyal said in an interview Monday that the setup will have both benefits and drawbacks for arguing attorneys.
A veteran of 41 oral arguments at the court, Katyal said advocates will miss being able to see the justices during arguments. He said attorneys will lose the facial expressions and body-language cues that help them understand whether their arguments are landing with the justices they are trying to persuade.
“It’s not ideal because I think the thing that we as Supreme Court practitioners do more than just about anything else is go and try and have a conversation with the justices in an hourlong oral argument,” said Katyal, now a partner at the firm Hogan Lovells. “And in order to have a good conversation, it helps to be able to see the other person.”
Attorneys will also need to be even more cautious not to interrupt or talk over justices, normally a goal of arguing attorneys that will again be made more difficult by not being able to see the bench.
At the same time, Katyal pointed out the situation will make it easier for arguing attorneys to reference notes and specific points in the record without needing to commit them entirely to memory and to lean on their co-counsel for advice during their time before the justices.
“Those advocates who have teamwork built into their DNA, I think are going to do better in this environment,” Katyal said.
Among the cases that were not rescheduled is a closely watched copyright dispute between Google and Oracle. The cases that were not rescheduled for telephone arguments will have oral arguments early in the court’s next term, which begins in October, according to the court’s Public Information Office.
Gabe Roth, executive director of the Supreme Court transparency group Fix the Court, said the move to live-stream arguments is a welcome advancement that he hopes will continue after the threat of the virus fades.
“This change in policy shows that the court is not immune to public pressure and that they’ve likely paid attention as countless state and federal appeals courts have successfully conducted remote arguments amid the health crisis,” Roth said in a statement.