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The Supreme Court announced on Monday it would shut for two weeks because of the coronavirus—the first such closure in over a century. The cases it has postponed include a closely watched showdown between Google and Oracle, and two involving President Trump’s personal finances.
When the nine justices resume hearing cases—the current plan is to do so in April—they are likely to do so before an empty courtroom or even from their homes. This raises the question of how the country’s top court will ensure the public and the media can witness the justice it metes out. The issue is not trivial: Public access to courtrooms is a bedrock principle of American law.
An obvious way for the Supreme Court to respond is by following the example of other courts and embrace technology like live-streaming to make closed proceedings accessible. But some legal experts are skeptical the court will embrace such a change—even when faced by the dramatic circumstances of the pandemic.
Pneumatic tubes and tradition
On New Year’s Eve 2014, Chief Justice John Roberts wrote about pneumatic tubes—an air-based technology to move documents between floors—in his annual report. He noted the Supreme Court only adopted them in the 1930s, more than four decades after the tubes had been invented. The court continued using them until the 1970s, long after they had been abolished everywhere else.
Roberts’s account highlighted the court’s proud indifference to technology, which still prevails. Former law clerks interviewed by Fortune describe a workplace where paper memos still circulate and where some justices don’t embrace common features of the digital age.
“There was significant variation among the justices when it came to preferences for technology,” says Daniel Rubens, a member of the law firm Orrick’s Supreme Court practice, who clerked for Justice Ruth Bader Ginsburg in 2013–-14. “Some are more comfortable than others with emailing and texting.”
Another law clerk who completed his Supreme Court stint last year noted the justices “hate change.” Speaking on condition of anonymity so that he could speak candidly, the clerk called attention to the court’s ongoing ban on cameras and reliance on sketch artists instead.
Such practices reflect how the Supreme Court’s view of technology remains rooted in the 1970s—if not the 1870s—and helps explain why the Supreme Court has shunned live-streaming or even releasing same-day audio of its hearings.
“The justices have resisted any camera technology in the courtroom, and I think that is unlikely to change. It’s a shame,” says Mark Lemley, a Stanford professor who has written extensively about law and technology. “[California’s] Ninth Circuit does a remarkable job of live-streaming all arguments with a two-camera system, and I think it makes the court system much more accessible to the public.”
The top court’s decision to shun technology, however, is rooted in more than stubbornness or antipathy to change. Chief Justice Roberts and others on the court have expressed concern that cameras in court could change the character of oral arguments. Lawyers, for instance, might indulge in grandstanding while justices, who often pose devil’s advocate–style questions, might be more reticent to speak for fear a video clip would be used out of context.
The law clerk who finished at the court last year suggested the justices are also wary of camera footage being used to create memes for social media. While certain justices spend little time online, he said others, including Justice Elena Kagan, are on Twitter, as are all their law clerks.
In an era of intense political partisanship, the reluctance of Chief Justice Roberts and other members of the court to introduce cameras is understandable. It’s a not a stretch to imagine political campaigns using clips of the justices in election ads about abortion, health care, or corporate finance.
Such considerations, however, may hold less sway if the court is forced by the coronavirus to shut its doors for severals months. Calls for change will be magnified, especially given the Supreme Court’s wide discretion to shape its own procedures.
Streaming justice
“Chief Justice Roberts could wave a wand and bring live-streaming in tomorrow,” says Gabe Roth, director of Fix the Court, a nonprofit group that advocates for more transparency in the judiciary.
Roth said his group has had considerable success in recent years in persuading other influential courts to adopt technology. The most prominent of these is the 9th Circuit, which has its own YouTube channel. He points out the 2nd and 4th Circuits have begun to offer live audio streams of high-profile hearings.
Roth predicts that the current crisis will put pressure on the Supreme Court to follow suit. Currently, the court does release audio recordings of its hearings, but only on Friday afternoons, which means the tapes are usually days old.
While the Supreme Court holds itself out as aloof to popular pressure, the former law clerks say the justices follow media coverage of its work closely and are not insensitive to criticism. Such justices will also face new pressure, says Roth, in the form of a campaign by CSPAN and others to ensure there is real-time coverage of the impending Trump financial cases.
One obstacle that does not stand in the way of the justices is the technology itself. According to Rubens, the former clerk for Justice Ginsburg, the Supreme Court has an excellent IT staff and a culture that is open to some types of tech innovation.
“I sense the court could be nimble in a circumstance like this. It will find a way to keep operations going and, if need be, allow law clerks to work from home,” he said.
Change versus consensus
The greatest challenge to bringing any sort of live technology to the Supreme Court may not be IT services or even political considerations. Instead, it is the culture of the court itself.
Supreme Court watchers have observed that prospective justices, during their Senate confirmation hearings, all expressed openness to introducing cameras in the courtroom. Yet by the time they don their high court robes, that openness seems to vanish.
The former law clerks attribute this to the court’s collegial character. Despite the divisions expressed by the justices in their rulings, the court still relies on consensus-based norms in many other respects. Rubens points out that the number of votes to grant a stay or an appeal is not set out in any rule but is instead the result of long-held customs.
This culture also means that, even if newer justices like Kagan or Neil Gorsuch are inclined to introduce cameras in the courtroom, they won’t push to do so out of deference to colleagues like Justice Clarence Thomas, an outspoken opponent of such practices.
This desire to preserve tradition, however, is likely to be met with a growing desire to preserve an another value: openness. The common law is replete with examples of the principle that justice should not just be done, but be seen to be done.
“It is desirable that the trial of [civil] causes should take place under the public eye… not because the controversies of one citizen with another are of public concern,” wrote Justice Oliver Wendell Holmes in 1884, “but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”
Holmes’s words are likely to exercise an influence on even the most tradition-bound Supreme Court justices, as the coronavirus closures continue into the unforeseeable future.
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