Justices on the U.S. Supreme Court will hear arguments by telephone in May, and, for the first time, the public can listen live. But what will happen when one of the most opaque and dignified government bodies is suddenly on display in real time? We might see that Supreme Court justices are “human, just like us,” says legal scholar Dan Urman, who teaches a course at Northeastern on Constitutional law and the Supreme Court.
The court is carrying on its business remotely to comply with public health guidelines about physical distance in response to COVID-19, and the newfound transparency will provide a historic look into one of the most insular institutions in the U.S. government.
The court will hear arguments on several high-profile cases—including three about subpoenas from prosecutors and Congress seeking President Trump’s financial records—starting at 10 a.m. on May 4, 5, 6, 11, 12, and 13, and the new remote setup could present some new challenges for justices who are used to rapid-fire questions and often talk over one another, Urman says.
During a typical oral argument, justices sit on a curved bench in the courtroom. This allows them to see each other and pick up on subtle nonverbal cues such as leaning forward to indicate who needs to speak, Urman says. Absent those visual cues, the court will have to establish new ground rules.
Among those rules: Justices will take turns questioning the lawyers in order of seniority, turning what is normally a free-for-all into a structured question-and-answer period.
There are other norms that will have to change, too.
Urman says that it’s considered disrespectful for lawyers not to address justices by name during their oral arguments.
“But only the biggest nerds can identify them [the justices] by voice,” he says, “so we may hear counsel referring to them as simply ‘Your honor.’”
Justices also generally discourage lawyers from consulting their notes during oral arguments, Urman says.
“Here, you could argue that it might be more relaxed,” he says.
There’s also the possibility that either the justices or the lawyers will run into unforeseen technical difficulties, and the way they deal with those may serve to humanize them, Urman says.
Consider Robert Kelly, a professor and political analyst who was interviewed remotely from his home about the impeachment of the South Korean president during a newscast on the BBC in 2017. In what has become a viral video viewed almost 40 million times, Kelly’s two young children burst into the room behind him, followed quickly by his wife who shepherds the children back out. The video was no doubt relatable to anyone who finds themselves trying to balance the needs of their children while working from home these days.
If justices encounter similar fumbles—perhaps the sort of verbal toe-stepping that happens on large conference calls with slightly delayed audio—it might make them more relatable to a public that is also adapting to new norms during this pandemic, Urman says.
Whether the live audio is seamless or beset with technical difficulties, Urman suspects the transparency to become the new normal for the Supreme Court.
“I think this is a welcome change, and it might prove to be a one-way ratchet” that would make it difficult for the court not to allow media access in the future, he says.
“If the public is as engaged as I expect the public to be, it will be hard for the court to justify this not becoming the new normal,” Urman says.
The court will provide a live audio feed to Fox News, the Associated Press, and C-SPAN, according to its press release.