Months away from the next presidential election, there remains an active dispute at the U.S. Supreme Court over the electoral college during the last one. That’s when three of Washington’s 12 “electors” cast ballots for former Secretary of State Colin Powell, while a fourth voted for Faith Spotted Eagle, a Native American elder, even though Hillary Clinton won the popular vote in the state.
The case boils down to this: Can electors freely choose their own candidate, or if they go rogue and defy their party, can the state fine them?
Instead of postponing the litigation until the pandemic has subsided, the nine justices decided to hear it last Wednesday by telephone. Importantly, they streamed the oral arguments live to the public online.
Welcome to the late ’90s.
You would think that providing Washingtonians live access to Supreme Court proceedings would be standard, but it’s not; the Court’s first-ever foray into livestreaming was earlier this month. And once we’re back to normal, live access is not guaranteed.
The justices’ courtroom fits 400 people for arguments, but only about 50 of those are members of the general public, and no cameras are ever allowed. Audio-only recordings of hearings are released on a several-day delay. As one can imagine, the public has benefited greatly over the last two weeks from the livestream, as newfound engagement with the Court has had a demystifying effect on the historically cloistered body.
High school civics classes have supplemented their curricula with live feeds. Law students have engaged with these cases beyond what’s offered in their syllabi and textbooks. And instead of relying exclusively on the coverage provided by the small Supreme Court press corps, reporters and citizen-reporters around the country have engaged with primary source material, developing a wider array of commentary than what we typically read from two dozen journalists in Washington, D.C.
Returning to the days of end-of-week access would roll back each of these benefits.
Over the years, justices have imagined various disadvantages of live access to the high court: Some say they do not want attorneys and justices playing to the audience; others claim that the public at large would not understand the court’s oral arguments. But none of these concerns have materialized during its live audio experiment. Attorneys have eschewed grandstanding for professionalism, and the questioning by the justices has been incisive, as the nine have demonstrated little tolerance for a wordy answer.
The fear that arguments will go over the head of the average listener also carries little weight. Certainly, the recent case concerning the president’s power garnered more attention than the patent litigation from the previous week, but that does not mean that the public does not understand. On the contrary, justices often distill a case when it’s their turn to question attorneys, looking past the legalese to the fundamental disagreement between the sides. For listeners seeking more, live audio has inspired a wealth of real-time observation and explanation.
The most controversial aspects of the arguments, outside of the content of the cases, was a mysterious flushing sound during the May 6 hearing. Since there is no toilet in the Supreme Court’s courtroom, that is hardly a concern when the justices return to the bench on the first Monday in October.
Transparency advocates have long pushed for live broadcast of Supreme Court arguments as a matter of principle. Official proceedings in a democracy ought to be open to the public, to the greatest extent possible. Congress rolls live on C-SPAN, and the White House streams everything from press briefings to presidential addresses, so the Supreme Court should likewise livestream its public proceedings.
But the last two weeks have demonstrated why live access is so important in practice. Without it, Washingtonians could not follow live the case that might determine how their votes may be distributed in the 2020 presidential election.