The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court has now been live-streaming the oral argument of cases for several months. At the outset, I would listen to every case, whether or not I was interested in it. I'll admit, now my interest has waned. I will tune into a case that I have some interest in. Or more likely, I'l wait till the transcript comes out. Old habits die hard.
Fortunately, this natural experiment, which was induced by the pandemic, has dispelled certain myths. First, there was a longstanding concern that the news media would splice up soundbites from the arguments in a misleading way. I don't think this has happened–even for high profile cases involving the President's tax returns. Second, there was a longstanding concern that the attorney would grandstand. We haven't seen this either. Third, there was a longstanding concern that the Justices would grandstand. Nope.
At some point, the Justices will be able to resume in-person meetings. If I had to guess, the Supreme Court chamber will be empty. Only the Justices, the advocates, and perhaps some members of the press would be allowed into the session. At that point, I hope the Court continues the natural experiment, and allows live-streaming of the audio. Given an empty chamber, there is no risk of disruption. Indeed, I think the risk of disruption is the most potent objection to placing cameras in the Court.
For many reasons, I enjoyed watching Judge Barrett's confirmation hearing. One unexpected plus: there were no disruptions. Watching the Kavanaugh hearings was excruciating. Every few moments, a protestor popped up and caused a disruption. It took a few moments to remove that protestor. Then another protestor popped up. And so on. The process was awful. Judge Barrett's hearing was something of natural experiment. Due to the COVID-19 protocols, there were no spectators allowed from the public. Yet, the public had full gavel-to-gavel access to the proceedings. Recall there was a protestor who snuck into the Supreme Court a few years ago. The Court would be hesitant to add cameras in light of that experience.
But what if the pandemic has shined the light on a potential solution? What if the Supreme Court no longer admits people off the street into oral arguments? What if the general public can register for tickets in advance? And the Court could hold a lottery (along the lines I discussed here)? I think this random approach would make it very difficult for protestors to sneak into an argument and cause a disruption. Also, a lottery would eliminate the perverse incentives for paid-line waiters, and line-cutters.
I think this sort of internal change could grease the skids for cameras in the Court.