There has been a lot of chatter about the landmark telephonic oral argumentSCOTUS held on Monday, May 4, 2020 (due to the coronavirus pandemic which led to a historical closure of the Supreme Court’s building).
SCOTUS has famously resisted broadcasting live arguments in any form, mostly for political reasons and the desire to avoid theatrical grandstanding by the advocates and justices.
With several telephonic oral arguments scheduled for May 2020, pundits are heralding a new era of transparency and public access to high level public discourse about pressing issues. But is it really?
1. Why the excitement? Everyone (including you!) could have been—and can still be—listening to SCOTUS oral arguments on Oyez at any time.
Listening to arguments on Oyez happens to be one of my favorite pastimes (because I’m a law nerd), one I’ve been doing for years. There's only a 1-2 week delay between live argument and being able to listen to it. I heard nothing that I needed to hear today rather than in another week or so. Oral arguments at SCOTUS are fiendishly complex and nuanced—the cases are decided through an ever-changing mixture of pragmatic rationalization and punctilious application of established tests. There is nothing headline-grabbing in legal reasoning at the highest court in the land.
Also, in all honesty, it was not a great argument on anyone's side (the advocates or the justices). Oyez is full of riveting past oral arguments, but there is no way to know in advance that an argument is going to be well presented (or dare I say, entertaining). So it makes no difference whether you listen to it live or next week.
2. Is anyone immune from technical glitches? Justice Sotomayor forgot to unmute (she's just like us!); one of Justice Breyer's questions was drowned out by static; advocates for both sides were cut off mid-sentence numerous times by Justice Roberts' refereeing. As with so many experiences during the coronavirus pandemic (during which time we have tried to recreate so much of our pre-crisis life by attempting to superimpose it online), oral arguments by telephone are a pale substitute for in person ones. This should not be the new normal.
3. Would Lisa Blatt have been so familiar with the Justices in real life? She basically scolded Justice Gorsuch for not reading parts of her brief (and I am 100% certain he did read it). I've never heard her argue before so maybe that's her style. But it's a risky one at this level of appellate advocacy.
I feel for her, though. It’s hard to maintain hierarchical formality when you can't see the trappings of hierarchy in front you. The Supreme Court argument hall is grandeur and inspires respect. Without the five-senses experience, it must feel like a teleconference with your moot court colleagues.
Maybe the lack of formality is a good thing, I'm not sure. But telephone oral arguments are by no means better than in person arguments that are recorded and uploaded to Oyez later.
What are your thoughts? I’d love to know what you think.
