The U.S. Supreme Court has wisely decided not to hold its scheduled oral arguments through at least April 1, announcing that it “will examine the options for rescheduling those cases in due course.” While it was obviously necessary to avoid holding court during the Covid-19 emergency – courts are closed across the country – I have to wonder why the arguments were not simply canceled, rather than postponed. Rescheduling the arguments means that decisions will be delayed. Given the uncertainty of the public health crisis, the delays could be significant, even for cases in which there is a great public interest in the decisions.
Oral argument – especially in person – is an artifact of the past. Long lines of would-be attendees notwithstanding, it is mostly performative, and it is hard to see how it ever contributes to case outcomes. Yes, justices have said it can be useful to “sharpen the issues,” but you would think that the nine best judges in the country, assisted by dozens of brilliant clerks, ought to be able to sharpen the issues on their own after reading the record and the briefs. And let’s say that oral argument now and then does change a justice’s vote; there is still no way to know whether it was changed for the better. Why assume that oral give-and-take produces a better outcome than extended quiet reflection?
I have never been to the Supreme Court, but I have listened to their oral arguments, and I have attended and argued in other state and federal appellate courts. I understand that oral argument is exhilarating, and it gives the advocates a sense of accomplishment and a feeling that they have been given every chance to persuade the court. But I think that is mostly, perhaps wholly, an illusion. (I might think differently if oral arguments were televised, as that would serve an important interest in public education. But the Court’s refusal to allow cameras only reinforces my suspicion that oral arguments are unnecessary.)
The Court is going ahead with its regularly scheduled conference on March 20, although “some Justices may participate remotely by telephone.” (Yes, telephone.) If they can conference remotely, they can certainly vote on decisions and circulate draft opinions remotely, especially if their IT staff teaches them how to video conference. There are few jobs in the world more amenable to working remotely than appellate court judging, and the justices could use time saved by the elimination of oral arguments to work on opinions and dissents. Perhaps they could even take and decide more cases (as they once did).
The SCOTUS announcement noted that there are precedents for postponing oral arguments during public health crises:
The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.
That is true, of course. But it is also true that the Court, in the 18th and 19th century, used to decide the majority of cases without oral argument, to no known ill effect.
No one ever wants to give up long-standing practices, even if they are largely ceremonial, but this might be a very good opportunity for the Court to experiment with deciding cases on the briefs.
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