Supreme Court’s First Experiment with Live Audio a Resounding Success

Polling data released today by PSB on behalf of Fix the Court shows that 83% of Americans support the Supreme Court’s decision to provide a live audio feed of oral arguments during the pandemic, with only 17% opposed to it.

When given the choice between continuing to provide a live feed to argument audio after the pandemic is over versus returning to releasing audio recordings at the end of the week, 70% favor maintaining live audio, while only 30% prefer a return to the erstwhile policy.

Full results are available here.

Though the format of the arguments, in which the justices asked questions in order of seniority, received mixed reviews, we now know empirically as well as anecdotally (see end of the release), that the “live” part was quite popular.

Additional data from news outlets that took the feeds and tracked clicks bears that out. According to a numbers compiled by Reporters Committee staff, more than 880,000 people had clicked on an online stream of the May 12 Trump taxes hearings on the C-SPAN, AP, ABC, CBS, NBC, PBS, Washington Post, Fox Business and NowThis sites by the time an audio recording would have typically been released, at 1:00 p.m. that Friday.

As of 9 p.m. ET last night, RCFP reports, the embedded audio feeds from the first week of arguments received more than 674,000 clicks on news websites; the second week got more than 1,205,600.

“Supreme Court justices say they don’t follow public opinion, but the sheer success of the audio livestream this month is something they should pay attention to,” FTC executive director Gabe Roth said. “Could you imagine the outcry if the court went back to releasing argument audio on a several-day delay? It would be ugly and do untold damage to the institution.”

“Now more than ever, Americans see the necessity of leveraging technology to maintain our institutions,” said Adam Rosenblatt, vice president and senior strategist at PSB. “Americans of every age, race and political affiliation agree that the Supreme Court providing live audio of oral arguments is the right move now and moving forward.”

Amazingly, May marked the Supreme Court’s first foray into live broadcast, 87 years after Franklin Roosevelt took the presidency to the airwaves and 41 since C-SPAN’s gavel-to-gavel congressional coverage began. Meantime the Supreme Court’s real-time feed was part of a larger appellate trend: 10 of the 13 U.S. courts of appeals and 38 of 50 state courts of last resort have livestreamed remote hearings since mid-March.

Despite this broad use and popularity, it is far from certain that appeals courts on the federal level, including the Supreme Court, will continue providing this type of live access once social distancing has been relaxed.

Should the high court indicate it wishes to return to an end-of-week audio release policy, it will be up to Congress to step in and compel real-time access to oral arguments. Legislation has already been drafted for that purpose: the 21st Century Courts Act, which would require live audio from the Supreme Court and circuit courts and was introduced in March by House Judiciary Chairman Jerry Nadler and Reps. Hank Johnson and Mike Quigley. FTC expects the bill to be marked up once the pandemic is over.

Livestreaming wins praise:
The 10 cases argued telephonically in May went as smoothly as could be expected. And while some technological hiccups interrupted the telephonic format, the live broadcast itself was widely praised by legal experts, court reporters and court-watchers, including:

Former Senate Judiciary Committee Chairman Chuck Grassley (in a tweet): “This increased transparency shld b permanent. The ppl’s biz ought 2b public!”

Rep. Mike Quigley, Chairman of the House Financial Services and General Government Committee (in two tweets): “[L]ivestreaming shouldn’t only be the norm during a pandemic. […] Live video and audio should be common practice in our circuit courts and from the Supreme Court. It’s time for our courts to modernize and the public to have more access.”

Perennial Supreme Court attorney, and the first to argue by phone, Lisa Blatt: “Obviously, the court should retain live coverage so the public can hear how impressive the justices are in doing their work.”

Cardozo Law Prof. Kate Shaw: “On balance, it was a very successful experiment. Many Americans were able to witness a key aspect of the court’s work for the first time, and that in itself was highly valuable.”

SCOTUSBlog’s Amy Howe: “There’s no reason why the court shouldn’t continue with live-streaming after the COVID-19 crisis is over; there are over 300 million reasons why it should.”

South Texas College of Law Prof. Josh Blackman: “I was pleasantly surprised how normal the arguments became. There was no grandstanding.”

Harvard Law legal fellow Lael Weinberger: “Livestreaming arguments can […] make it possible for anyone intensely interested in a case, or in the Court more generally, to have direct access to the arguments in all their complexity. It’s a small change. But at the margins, it’s likely to reduce, not increase, polarization surrounding the Court.”

Anthony Marcum and Shoshanna Weissmann of R Street Institute: “Live Supreme Court arguments have brought a brand new audience of interested onlookers who have never heard the highest court in action before.”

Long-time court reporter Lyle Denniston (though heavily critical of the new format): “The only virtue is that the court was publicly exhibited as it did its work. There is a civic value in that.”

FTC’s Dylan Hosmer-Quint (in a Seattle Times op-ed): “Official proceedings in a democracy ought to be open to the public, to the greatest extent possible. Congress rolls live on C-SPAN, and the White House streams everything from press briefings to presidential addresses, so the Supreme Court should likewise livestream its public proceedings.”

Finally, local outlets also chimed in to support the live broadcast, including the editorial board of the Bend (Ore.) Bulletin: “The change to live, real-time audio should have happened long ago. It’s a needed embrace of transparency. For the public, listening can be a fascinating civics lesson.”

More information:
Fix the Court and PSB expect their next joint survey, on Americans’ attitudes toward life tenure at the Supreme Court, to be ready for public release in mid-June.

Methodology:
PSB conducted online interviews from May 15-18, 2020, among 1,100 U.S. consumers. The margin of error for this study is +/- 2.95% at the 95% confidence level and larger for subgroups. Some percentages may add to more or less than 100% due to rounding.