Tradition over technology? SCOTUS delays its April oral arguments for no justifiable reason

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Above: Image courtesy of Demand Justice. (Oh no, now I have the Brady Bunch theme song ear worm in my head).

Amy Howe at SCOTUSblog reported that the U.S. Supreme Court announced on March 16 that it would postpone the scheduled March oral arguments in response to the COVID-19 crisis.

The justices did not set a new date for the 11 arguments slated for the March session, which include the dispute over access to President Donald Trump’s financial records.

The notice followed Thursday’s announcement that the court would be closed to the public “until further notice” in response to the spread of the coronavirus. Today’s press release made clear that other business would continue at the court, most notably the justices’ private conference, scheduled for Friday, March 20, to consider new cases for their docket. However, the court noted, some of the justices (six of whom are over the age of 60) “may participate remotely by telephone.”

In fact, the justices have continued to hold private conferences and to issue orders and opinions electronically on the court docket (departing from tradition for the first time from reading summaries of opinions from the bench).

The March postponement was reasonable to give the court some time to figure out how it wanted to deal with the new reality of a coronavirus pandemic and CDC guidelines for social distancing.

But it appears that the Supreme Court squandered this time on hoping for the situation to improve rather than instituting available technology which is being implemented in almost every courtroom in America, except the Supreme Court.

Amy Howe at SCOTUSblog follows up, April argument session postponed:

Five days after President Donald Trump announced that federal guidance on social distancing would remain in effect until April 30, the Supreme Court announced that its April argument session, which had been scheduled to begin on April 20 and run through April 29, would be postponed. The justices did not indicate whether or when arguments might resume this term, but they left open the possibility that some of the cases that have been deferred could still be argued this term.

In its three-paragraph press release, the court said that it “will consider rescheduling some cases from the March and April sessions before the end of the Term, if circumstances permit in light of public health and safety guidance at that time.” Most of the cases slated for argument in March and April are not necessarily time-sensitive – but at least two groups of cases arguably are: the trio of cases, originally scheduled for argument on March 31, involving efforts by Congress and Manhattan prosecutors to gain access to the president’s financial records; and the pair of cases from Colorado and Washington challenging the constitutionality of “faithless elector” laws, which had been scheduled for argument on April 28.

The court also indicated that it would “consider a range of scheduling options and other alternatives if arguments cannot be held in the Courtroom before the end of the Term.” This could mean that some of the cases scheduled for March and April might be pushed back to the term that begins in October 2020, while others are decided without oral argument; it also at least leaves the door open for the justices to hold oral argument remotely in some cases, as the Supreme Court of Texas plans to do this month.

There you go! The Supreme Court of Texas is doing the right thing, turning to available technology rather than delay hearing cases out of slavish devotion to tradition, because “justice delayed is justice denied.”

As Dominic Holden of Buzzfeed News says, The Supreme Court Is Delaying Arguments Again — Why Don’t They Just Do A Videoconference Like The Rest Of Us?

The Supreme Court on Friday once again postponed oral arguments in several major lawsuits, this time for its April session, leaving high-profile legal disputes in limbo due to the coronavirus pandemic.

The delay affects a number of cases slated for in-person debate inside the Supreme Court Building, including a trio of lawsuits about disclosing President Donald Trump’s financial records; arguments were originally slated in those cases case for this week.

The roadblock has frustrated activists who say the court must adapt on urgent matters of national interest. The nine justices already hold video conferences for their weekly closed-door conferences — prompting a growing cry to simply hold oral arguments with a videoconferencing service.

In an effort to break the logjam, progressive advocacy group Demand Justice is planning a social media ad campaign on Monday that targets about 100,000 people around Washington, DC, arguing the court must hear the president’s financial records cases, collectively referred to as Trump v. Mazars.

Lower courts had ruled against Trump in those disputes, saying he must hand over a trove of records, possibly even his tax filings, but the Supreme Court put the brakes on those decisions last fall.

“If Chief Justice John Roberts wants to continue delaying the release of Donald Trump’s tax returns, he’s going to need a better excuse than not wanting to spring for a Zoom subscription,” Brian Fallon, executive director of Demand Justice, told BuzzFeed News.

Other federal appellate courts have already switched to online platforms for hearing arguments, including the 9th Circuit Court of Appeals and 4th Circuit Court of Appeals— plus state supreme courts in Ohio and Georgia.

Spokespeople for the Supreme Court did not reply to inquiries from BuzzFeed News about when the justices would announce a plan to hear the postponed cases or if anything stopped them from holding arguments online.

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The court implied possible workarounds — without elaboration — noting that it “will consider a range of scheduling options and other alternatives if arguments cannot be held in the Courtroom before the end of the Term.” The press release also said justices will “continue to proceed” with cases in which they have already heard oral arguments. They will post those opinions online.

“Canceling in-person oral arguments was absolutely the right decision,” Fallon said, “but millions of Americans have figured out how to adjust to a public health emergency while completing time-sensitive tasks from home. Any delay from Roberts is about his desire to cover for Trump, not technical limitations.”

Fix the Court, a nonpartisan advocacy group, is making a similar argument. “This is getting ridiculous,” Gabe Roth, the group’s executive director, said in a statement Friday. “If the Supreme Court can conduct its weekly conferences remotely, which it has been doing for weeks, it can conduct its remaining arguments remotely and allow the public to listen in.”

A stimulus bill passed last week by Congress included a half-million dollars for the Supreme Court.

“The country has adapted to working over Zoom, Skype, and Google Hangouts, and dozens of state and federal courts are keeping the wheels of justice moving via teleconferencing in spite of the pandemic,” Roth said. “The Supreme Court should be no different.”

The three major lawsuits over Trump’s financial records — likely including his tax forms, which he declined to make public during his last presidential campaign — test the rights of sitting presidents to stonewall investigations from prosecutors and congressional lawmakers. Several other cases also stand in limbo, including a case involving Little Sisters of the Poor, a Catholic group, that debates whether expanding religious conscience exemptions under the Affordable Care Act’s birth-control mandate was legal.

The justices next regularly scheduled Friday conference is April 17, but the justices are expected to issue orders from Friday’s conference online on Monday morning at 9:30 a.m., followed by opinions in argued cases at 10 a.m. They should get together at that time via videoconferencing and reconsider Friday’s order. There is no justifiable reason for the court to delay oral argument of cases out of slavish devotion to tradition when virtually every other court in the land is switching to online platforms for hearing oral arguments.

Justice delayed is justice denied. Tradition must give way to technology in the pursuit of justice.




1 COMMENT

  1. If Wisconsin goes ahead with their election on Tuesday, they are taking away the critical First Amendment right of Americans to vote. This will just be a preview of the possible legal challenges coming up for the November election and the December Electoral College vote.
    If states are unable to provide safe voting procedures for their citizens, their electoral votes should be challenged.
    This Supreme Court needs to get back to work now. If they think that protecting Donald Trump and his tax returns past the election are a good idea, they are in denial.
    The 2000 election fiasco ending in Bush v Gore will pale in comparison to this November if Wisconsin is any indicator.

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