When the Supreme Court convenes by teleconference on Monday, the news media will mark a milestone: The justices are allowing a live audio access of oral arguments.
As of now, the move is temporary, as the coronavirus crisis has forced the high court, like so much of the country, to work remotely. In normal times, oral arguments would be open to the public and the media, but with strict rules against cameras and recording devices, while audio was made available days later.
For decades, the public affairs network, which is funded by the cable industry, has sought permission to bring cameras into the court, bringing it in line with its coverage of the House and Senate chambers and many events at the White House. That has not happened, even after once doing a demonstration for a group of justices to show that such coverage would be unobtrusive.
Things changed a bit in 2000 when the justices debated Bush vs. Gore, the case that settled that year’s presidential election. An early audio release of the oral arguments was allowed, albeit only for later in the day, forcing networks to carry the feed even after reporting on much of what was already said. Since then, there have been other instances when the court has allowed an earlier release of audio, but typically the public and media has had to wait for the Friday postings on the Supreme Court website.
The coronavirus crisis forced the Supreme Court to rethink its policies. After postponing oral arguments in a number of cases in March and April, it rescheduled those hearings during the month of May, making clear that they would be via teleconference and that there would be some audio version available.
C-SPAN General Counsel Bruce Collins called the court’s decision “historic.”
What appears to have weighed in favor of allowing such coverage is the need for oral arguments to be public proceedings. That isn’t possible if the access to the court is restricted. So the solution is a live feed.
The court is providing the audio feed to the network pool, chaired by Fox News, and to the Associated Press and C-SPAN. Fox News will have correspondent David Spunt covering live from the court, with analysis from chief legal correspondent Shannon Bream.
The first case on Monday will be a case, Patent & Trademark v Booking.Com, having to do with whether a business can trademark an otherwise generic term.
That may not be scintillating listening, but coming soon is one of the most anticipated cases of the court’s term. That will be on May 12, when the justices will hear Trump v. Mazars and Trump v. Deutche Bank AG, having to do with whether the president must release his tax returns.
So could live audio be a regular thing for the court? Collins does not want to predict, saying that it could “go either way.” He has his doubts that it means that the justices also are warming up to the idea of cameras in the court. “If they did it would probably require an entire new generation of justices,” he said.
In the past, the main resistance to that has been the idea that it will disrupt the proceedings, or that lawyers would play to the cameras.
Late justice Antonin Scalia also expressed concerns that it would mean clips would be pulled from oral arguments without context, Collins said. And there also has been the notion that cameras would “interfere with the dignity of the court,” he said, as the proceedings still have an aura to them that other sectors of government do not.
Prospective justices typically are asked about cameras in the court during their Senate confirmation hearings, and there seems to be a fairly common answer: They are open to considering the idea.
But “once the nominee becomes a justice, they either become silent on the issue or not longer are in favor of it,” Collins said.
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