High court rejects televising, postpones hearings for term
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.