The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
More likely than not, the Justices will assemble for in-person oral arguments on Monday, October 4. It remains unclear how the Justices will release audio of the sessions. In light of past practice, there seem to be three possibilities. First, the Court will continue to livestream the arguments. Second, the Court will release some, or perhaps all arguments on the same day, several hours after the session concludes. Third, the Court will go back to the pre-2020 status quo, and release audio on the Friday after arguments.
In hindsight, the greatest fear of live-streaming never materialized. The media did not take clips out of context in misleading ways. On balance, the real-time broadcasts worked remarkably well. Indeed, sharing the audio prevented tweeters from miscasting oral arguments. C-SPAN brought reliability to same-day punditry.
At this point, the most pressing argument against live-streaming is the possibility of disruptions. No one could disrupt the arguments held remotely. But once people are allowed back in chambers, the threat of interference returns. In 2014, protestors disrupted oral arguments by shouting in the session. Later, the protestors leaked footage from a hidden camera.
This memory is no doubt on the Court's mind. If there is a live-stream, then people will have incentives to disrupt the proceedings, and be seen. Think of Justice Kavanaugh's confirmation hearing. Every few moments, another person jumped up and started screaming. The interruptions made the proceedings very difficult to follow. The Supreme Court would not abide by frequent disruptions.
This fear may cause the Justices to simply retreat to the pre-2020 status quo, and release arguments several hours later, or on the following Friday. But there is another option that is very familiar to live broadcasts: a tape delay.
What if the Court broadcasted the audio with a 7-second tape delay? If, for whatever reason, someone makes a disruption, the Court could pause the feed. Then, when order is restored, the feed can be restored. That way, people who seek publicity by protesting will not receive publicity in real time. Of course, the media will report on the protest after the fact. But the protesters will not get the viral moment.
I don't like the idea that the Court would alter the recording of its proceedings. The entire notion of doctoring history does not sit well with me. But in 2014, the Court edited out the protest. Disappeared from history. Still, I'd rather the Court edit out the occasional protest, and keep live-streaming, than go back to the stone-age of Friday releases.
I hope this modest proposal can be considered by the Court.