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SCOTUS Livestreamed. The World Did Not End.

Thomas’ questions, Roberts as traffic cop and the attorneys’ conversational style mark the first of 10 hours of live Supreme Court arguments this month 

AT HOME, N.Y. — The Supreme Court’s first attempt at broadcasting oral argument audio live went swimmingly. Someone must’ve forgotten to cue the fire and brimstone.

“Remind me why they haven’t been doing this all along?” asked Gabe Roth of Fix the Court, which since its 2014 founding has advocated for this policy change as a stepping stone to live video.

Concerns over technical glitches proved to be overblown – Justice Sotomayor was on mute for an extra moment during her first round of questions, and Justice Breyer at one point had a few seconds of raspy audio, but that was it – as tens of thousands of Americans finally had the opportunity modern technology has afforded us for decades: to listen to the country’s top jurists weigh in on a case, live and unfiltered, without having to stand in line for hours, if not days, outside the courtroom, and alternatively, for those outside of Washington, without having to wait until the end of the week to hear the justices’ voices.

“The days of restricting the court’s proceedings to VIPs, the press and a few dozen members of the public are over,” Roth added. “Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we’re past the pandemic.”

After the marshal cried the Court and Chief Justice Roberts called the first case, DOJ attorney Erica Ross, representing the U.S.

Patent and Trademark Office in PTO v. Booking.com, began the historic arguments by citing a Second Circuit patent opinion by Judge Henry Friendly – for whom Roberts clerked – and having two minutes, 21 seconds of uninterrupted time before the Chief Justice broke in with a question about the trademark statute. After all nine justices asked questions, Lisa Blatt, arguing for Booking.com and who the Washington Post reported was speaking from a lectern atop her dining room table, kicked her turn off by discussing the situations under which generic words may be trademarked. Roberts broke in after two minutes, 18 seconds.

Ross and Blatt – skilled SCOTUS advocates both – parried the queries with a style both conversational and intellectual that made it clear why this argument was chosen to be the first one ever livestreamed. Even Justice Clarence Thomas, who’d previously only asked questions in two oral arguments since 2006, asked questions of both attorneys.

During the 77-minute exercise, Justice Kagan asked the most queries with six, followed by Roberts, Gorsuch and Ginsburg with five apiece. No justice asked fewer than two questions.

One could make the argument that the typically boisterous bench was more subdued than usual today, given Roberts’ role as traffic cop, cutting off every single one of his colleagues after three or four minutes of questioning, even if they were mid-question or if the attorney was mid-answer. Our research indicates that the public would see that as but a small concession to make given the overwhelming support for real-time streaming.

A link to an audio file of the argument is expected to be posted on SupremeCourt.gov shortly, which makes this not only the first live argument but also the 28th for which an audio recording was provided to the public on an argument day.

To our disappointment, though, Roberts went right into argument after the marshal’s cry, whereas courts that have offered expanded broadcast access have chosen to explain to those listening live what they were about to hear. Some appellate judges who have livestreamed arguments from their courtrooms were quick to chime in with some encouragement, albeit cheekily. Chief Justice of the West Virginia Supreme Court of Appeals Beth Walker tweeted, “Congratulations, SCOTUS, on broadcasting the audio of oral arguments live today. The Supreme Court of Appeals of West Virginia has been doing it since the late 1980s.”

More information on COVID and the courts:
FTC surveyed the 50 states’ top courts and the 14 U.S. courts of appeals and found that, as of today, 29 of the former and 13 of the latter (all but the First Circuit) have conducted remote arguments since the President declared a national emergency on March 13. Another 10 state supreme courts plan to go remote in the coming weeks.

The most popular argument format we found was similar to what the Supreme Court followed today: attorneys uninterrupted for a certain number of minutes, followed by rounds of questions from judges in order of seniority, with the chief sometimes waiting to go last. For example, when the D.C. Circuit conducted remote en banc arguments on April 28 on whether the U.S. House may compel testimony from executive branch officials, for which a live audio feed was provided to the public via YouTube, Chief Judge Sri Srinivasan gave each attorney three minutes for opening statements followed by questioning by the eight other judges in order of seniority, though Srinivasan himself waited to ask questions until the end. Judges were then given a second round of questions before moving to the next attorney’s opening statement, and attorneys were allotted a brief time for rebuttal.

A three-judge panel in the The Tenth Circuit, meanwhile, was “not planning to stream [its April 30] arguments since that would just complicate our first attempt at completely remote arguments,” according to a court source. “But then we decided to follow the approach the D.C. Circuit uses,” regarding timing and questions, which worked well and will again be employed for this week’s arguments. This format – three minutes uninterrupted, questions in order of seniority – was also followed by the Massachusetts Supreme Judicial Council for its remote arguments on April 6.

It remains an open question whether the format the Supreme Court has adopted for remote arguments this week will stay the same throughout the May sitting. The Chicago-based Seventh Circuit, for example, decided that after a handful of telephone-only arguments in April, some of its hearings this month may take place over Zoom. The Supreme Court of Ohio also moved to Zoom last week after the initial video platform it used was so “awful” that they “only posted the audio,” according to a court source.

With live remote arguments having been successfully conducted in 11 of 14 federal appeals courts (all but the First, Third, Sixth Circuits), the argument could be made, to paraphrase Justice Harlan’s famous dissent in Estes v. Texas, that the day has come when live audio “will have become so commonplace an affair […] as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.”

Links to all of the live audio feeds C-SPAN is providing over the next two weeks can be found here.

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