Livestreaming arguments? The Supreme Court made the right decision

May 11, 2020 - Dr. Ryan Black

It is fitting that the U.S. Supreme Court’s unofficial mascot is the turtle. Like the turtle, the court is notoriously slow-moving and incremental, especially when making changes to its courtroom procedures. As a result, even seemingly small changes can appear monumental. The court’s recent decision to allow live audio streaming during oral arguments is one such monumental change. The decision speaks to the complicated relationship that the only unelected branch of the federal government has with the public. And it raises further questions about how the court will interact with the public in the future. 

This week, the justices broke from their two-month hiatus to hear oral arguments in a number of cases. But it isn’t business as usual. For the first time in history, the justices are conducting these arguments over teleconference and streaming them live to anyone who wants to listen. (Previously, the court would release audio the Friday after the oral argument.) Its decision to livestream arguments is a giant leap for an institution that has shown an uncanny ability to keep its technological feet planted decades in the past. It also shows, according to results from a survey we recently fielded, a remarkable level of self-awareness with respect to its institutional legitimacy.

In late April, we surveyed nearly 1,500 people across the U.S. to determine their views about oral argument. The results reveal that the court’s choices, with one noteworthy exception, track closely with public opinion. In the initial weeks of the COVID-19 pandemic, the justices were forced to postpone oral arguments for the remaining cases scheduled for argument this spring. Nothing beyond tradition and precedent precluded the justices from deciding those cases on the briefs alone without oral arguments from the involved parties. 

The structure of these oral argument teleconferences also will prove useful for the court. Its previous in-person sessions have come to be seen as something of a legal scrum, or free-for-all, in which justices frequently interrupt the attorneys and one another. So significant was the frequency of interruptions that, at the start of this term, the court adopted a new rule to provide attorneys with two initial minutes of uninterrupted argument time before the justices can engage with them. The teleconference questioning, however, proceeds in order of seniority, with Chief Justice Roberts asking questions first, followed by Justices Thomas and Ginsburg, and then all the way to Justice Kavanaugh. This orderly process is certainly an attempt to prevent unnecessary conflict over the teleconference.

Here, too, our analysis suggests the court made the right decision. When asked about avoiding large disagreements during oral argument, 52 percent of our survey respondents agreed judges should seek to avoid clashing with their fellow judges or with the attorneys (only 20 percent disagree, while the remaining 28 percent were undecided).

Despite being in line with sentiment about these procedures, our results suggest the justices may have missed an opportunity to further enhance the court’s public image. Unlike a growing number of state and lower federal courts, the U.S. Supreme Court has steadfastly refused to allow television cameras into its hallowed halls. Justices oppose cameras for fear the media might misrepresent what the court does and what the justices say. The result, in the justices’ estimation, would be that people exposed to the media’s misrepresentations would begin to think poorly of the court and, in turn, its legitimacy would suffer. Whether these concerns are valid remains very much an open empirical question, but we can say that the public does not share the court’s skepticism. Fully 67 percent of our survey respondents agreed with the statement: “All courts should allow cameras into the courtroom so that anyone who wants to watch oral argument can do so.”

In other words, the court might be able to enhance its reputation by allowing live video of arguments. After all, an enduring piece of wisdom from previous studies is that to know the court is to love it. That is, the more people are exposed to the court, its symbols, and the legal arguments in cases, the more they respect it. Similar studies show that personal visits and speeches from the justices to law schools and community centers cause those in attendance to view the court more favorably. In fact, our results show that trust in courts increases when people are exposed to oral argument proceedings. As such, allowing greater access to oral arguments likely means improved favorability for the court as an institution.

Whether the court recognizes these gains and moves toward cameras in the courtroom is a separate issue. It is possible that cameras would enhance the court’s legitimacy. For now, however, our results suggest the court made the right move in deciding to provide a livestream teleconference of its oral argument proceedings.

Ryan C. Black is a professor of political science at Michigan State University.