It seems that no one is immune from the impact of the coronavirus—not even the prestigious highest court in the land. The coronavirus has already changed Supreme Court operations, and it will only continue to do so.
On March 12, the Court closed its doors to the public. On Monday, the Court indefinitely postponed the 11 cases set to be argued in late March. Then, on Thursday, the Court extended the deadline for filing petitions seeking review of lower court decisions by 60 days.
The fourth change is that the Supreme Court will now release its opinions online, rather than in open court during public hearings. On Friday, March 20, the Supreme Court announced that it “may release opinions on Monday, March 23.” The Supreme Court notice states that “[t]he Court will not take the bench. Opinions will be posted on the homepage beginning at 10:00 am.” Normally, the justices announce their decisions orally in open court, where members of the public attend, with the author of the majority opinion reading a summary of the decision.
The Supreme Court has heard 48 cases so far this term and has decided 12 of them. The justices and their clerks are working on the opinions for the remaining 36 cases. The Court will likely continue to release the remaining opinions online until the experts determine that there is no longer a health risk for the Court to resume public hearings.
The big question is what now happens to the cases set for oral arguments in March and April.
We know the Court has indefinitely postponed the 11 cases set for oral arguments in late March. It has not yet decided what to do with the nine cases set for late April, which would be the final cases of the term. The Court is likely waiting to see if the virus abates and the authorities say it is once again safe to hold oral arguments, where hundreds of people would congregate. But there is a very good chance that the Court will also indefinitely postpone the oral arguments set for April.
The Court will most likely reschedule these oral arguments for the fall. But it is possible that the Court could decide the cases without oral arguments. That sometimes happens. Also, the bulk of legal argument happens in the written briefs, so it is not as though the justices would be missing some significant information by forgoing oral arguments.
But I think that cancelling the oral arguments entirely is unlikely. The cases the Court resolves without oral arguments are often seen as less significant. The Court grants oral arguments in its most important cases, because those arguments allow the justices to interact with the advocates and clarify questions about the case. The arguments can also persuade some justices to change their minds. And finally, the arguments are the one time the public sees the justices in action. Because of the perceived value of this tradition, it is likely that the Court will eventually hear oral arguments in all of these cases.
However, there are several cases that probably cannot wait until the fall to be decided.
- Two cases from Colorado and Washington involve the Electoral College and the “faithless” electors who did not vote for the presidential candidate who received the majority of the popular vote in their state. These cases could have implications for the 2020 presidential election, so it is difficult to imagine that the Court would postpone oral arguments in those cases until October or November.
- The cases involving President Trump’s tax forms involve congressional investigations and grand jury proceedings. Decisions in those cases obviously might also have implications for the presidential election, such that the Court is unwilling to delay the oral arguments until the fall.
If there are oral arguments this spring, those arguments could depart from the way they are traditionally done. If any oral arguments are held during the remainder of the term, the priority will be to ensure that the Court does not contribute to spreading the coronavirus.
If there are regular face-to-face oral arguments with the advocates later this spring, they would probably be done with no spectators in the courtroom, or with a few spectators who have been carefully screened for coronavirus. Perhaps the attendees would be a few members of the public with ties to the case, plus the Supreme Court reporters, with everyone spread out with appropriate social distances between them and not crammed together as usual.
An alternative would be for the justices to conduct the oral arguments by remote video or audio feeds. This would be unprecedented for the Supreme Court, but lower courts do this with some frequency.
Although the remote method would prevent the participants from spreading infection, I think the justices would be reluctant to give up the direct face-to-face interaction of oral arguments. Also, I wonder whether the justices will think video oral arguments look too much like broadcasting the Court’s oral arguments, something they are loathe to do.
In short, if the Court does postpone all but the cases involving the Electoral College and President Trump’s tax forms, it will then consider taking the more radical steps for those oral arguments. And the justices will probably be hoping they can revert to their standard way of holding oral arguments and court hearings when the new term starts on the first Monday in October.
For now, we wait and see.
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