San Francisco Chronicle

High court rejects televising, postpones hearings for term

- Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicl­e.com Twitter: @BobEgelko By Bob Egelko

The Supreme Court, while continuing to issue rulings, has postponed its remaining hearings this term because of the coronaviru­s. Some of the unheard cases are timesensit­ive, including attempts by House Democrats and New York prosecutor­s to obtain President Trump’s financial records.

But whatever urgency those cases have is apparently outweighed by the court’s unwillingn­ess to allow cameras that would enable the public to view the hearings. Unless the court changes its rules, cases not heard in the current term, scheduled through the end of June, will be put off until the next term, which runs from October through June 2021.

“The court will consider a range of scheduling options and other alternativ­es if arguments cannot be held in the courtroom by the end of the term,” the justices said in an announceme­nt Friday postponing the last group of scheduled hearings.

In one group of cases, two House committees are seeking financial records held by Trump’s accounting firm from 2011, and Manhattan prosecutor­s have subpoenaed Trump’s tax returns and other records of hush money payments to two women who said they had sexual relations with Trump. Lower courts ordered disclosure of the documents.

Other postponed cases include a dispute over the right of Electoral College members to vote for a candidate other than the one they had pledged to support, a multibilli­ondollar battle between Oracle and Google over copyright protection­s, and an effort by two Catholic schools in California to classify their teachers as ministers and exempt them from discrimina­tion laws.

Stanford Law Professor Nate Persily said the court could conceivabl­y rule on those cases without holding hearings.

“Much as we have come to think oral arguments are necessary for resolution of a case, they could probably decide all those cases on the briefs,” he said.

Meanwhile, state appellate courts around the nation and a number of federal appeals courts, including the Ninth Circuit in San Francisco, continue to hear cases by teleconfer­ence and allow remote viewing by the public.

“Dozens of state and federal courts are keeping the wheels of justice moving via teleconfer­encing in spite of the pandemic,” said Gabe Roth, executive director of Fix the Court, which advocates increased public access to the Supreme Court and stronger ethical rules for the justices. He noted that the justices have been communicat­ing remotely in their weekly conference­s, in which the court decides which lowercourt rulings to review.

Another group of advocates, including Demand Justice, People for the American Way and Common Cause, said the court appeared to have political reasons for delaying action on cases related to the president’s finances, including demands by two House committees for financial records held by Trump’s accounting firm from 2011 through 2018, and a grand jury subpoena obtained by Manhattan prosecutor­s for Trump’s tax returns and other records of hush money payments to two women. Lower courts ordered disclosure of the documents.

“The court’s failure to make alternate arrangemen­ts in this timesensit­ive case only serves to sanction Trump’s stonewalli­ng of investigat­ions,” the advocacy groups said. “Delaying of this case is effectivel­y picking a side.”

While courts in California and most other states have halted trials and other proceeding­s requiring inperson appearance­s and interactio­n by participan­ts, appellate courts have maintained their regular schedules, hearing cases remotely and issuing rulings while closing their doors to the public.

The California Supreme Court first televised a hearing in 1982 — allowing news media and the public to observe the proceeding­s without traveling to the courthouse — and has been livestream­ing all of its hearings since 2016. Chief Justice Tani CantilSaka­uye, appointed to the court in 2011, said she has seen no difference in conduct by attorneys or justices since 2016.

“No one ‘plays’ to the camera because the cameras are unseen and unnoted,” CantilSaka­uye said in a statement. “The attorneys and the justices are focused on the argument in the case at hand. Live streaming our arguments makes the work of the third branch of state government more transparen­t and more accessible.”

That appeared to be the view of several current U.S. Supreme Court justices at the beginning of their tenure.

“I don’t see any problem with having proceeding­s televised,” Justice Ruth Bader Ginsburg said in 1993, three months after joining the court. “I think it would be good for the public.” But she told an interviewe­r in 2019 that telecastin­g “gives an altogether wrong impression of what appellate advocacy is.”

At her 2009 confirmati­on hearing, Justice Sonia Sotomayor said her past experience­s with camera coverage in lower courts had been positive. But she said recently that most viewers of televised proceeding­s don’t take the time to appreciate what the court is doing. Other justices have said they feared lawyers, or fellow justices, would start talking in sound bites for the cameras.

Televised hearings “would be very helpful in getting people more familiar with how the court operates,” Chief Justice John Roberts said in an October 2018 CSPAN interview. “But it’s not our job to educate people . ... Our job is to carry out our role under the Constituti­on.”

Charles Geyh, a professor of law and legal ethics at Indiana University, said Roberts has “longstandi­ng legitimacy concerns” about the court, but his fears of telecastin­g seem exaggerate­d.

“He seems to be placing those concerns ahead of the needs of parties on the court docket, and the nation that turns to the court for guidance on and resolution of some of our most pressing problems we face,” Geyh said.

 ?? Dreamstime / TNS ?? The Supreme Court’s hearings that will be put off because of coronaviru­s include some timesensit­ive cases.
Dreamstime / TNS The Supreme Court’s hearings that will be put off because of coronaviru­s include some timesensit­ive cases.

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