Whither the U.S. Supreme Court?

Dear Readers:

Some of you may know me from my many years covering the Supreme Court for The National Law Journal and some from my Supreme Court analysis for PBS' The NewsHour. I will be stopping by from time to time to share some thoughts on the work of the Justices. You have been in the excellent hands of my wonderful friend and colleague Lyle Denniston and I hope to do nearly as well in the coming weeks. It is an honor and a privilege to be with you here and I look forward to "connecting" with you in these challenging times for all of us.

The U.S. Supreme Court building, often known as the "marble palace," is closed to the public, but the Justices' work continues. Let's take stock of what may still be—with an unexpected element—the most significant Supreme Court term in decades.

In normal times, spring draws hundreds of visitors to a Capitol Hill ablaze in colorful tulips and Cherry tree blossoms. The highlight of their visit is often a coveted seat in the Supreme Court courtroom for the final oral arguments of the term.

Today, the court's great hall where lawyers and tourists line up to go through security before entering the small, intimate courtroom is empty and silent. The Justices have postponed March and April arguments and have yet to say how they will bring the term to its usual end in late June.

What we do know is that from the first Monday in October 2019—the official start of the current term—through February 2020, the Justices heard arguments in 48 cases, including some of the most controversial of the term.  Their pace of issuing decisions in those 48 has been, to be blunt, slow—slower than the preceding four terms. The Justices have decided just 19 of the 48.

The slow pace, say some court watchers, may be due to the time lost by Chief Justice John Roberts Jr. when he was overseeing the Senate impeachment trial of President Donald Trump. But Roberts did not miss any arguments during that time and he assigns the writing of opinions, when he is in the majority, soon after arguments.

A more likely reason for the slower pace is the controversial nature of some of the most closely watched cases and the difficulty in reaching agreement on an outcome. Keep an eye on these five argued cases in the next few weeks:

• R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Bostock v. Clayton County, Georgia: Does the ban on job discrimination "because of sex" in Title VII of the Civil Rights Act of 1964 include discrimination because of sexual orientation and gender identity?
• Department of Homeland Security v. Regents of the University of California: Is it illegal for the Trump Administration to wind down the deferred deportation program for an estimated 700,000 so-called Dreamers—children brought to this country by their undocumented parents?
• N.Y. State Rifle & Pistol Association v. City of New York: Does New York City's now rescinded ban on transporting handguns outside the city limits violates the Second Amendment?
• June Medical Services v. Russo: Is Louisiana's requirement that abortion physicians have hospital admitting privileges within 30 miles of the abortion facility unconstitutional?

Those are just five of the already argued 29 cases that are likely to capture news headlines when decided. Those decisions also are likely to reveal much about the court's newest Justices—Neil Gorsuch and Brett Kavanaugh-- and how they approach constitutional and statutory questions.

The other argued cases are equally important to the parties that appealed to the Supreme Court: prisoners seeking resentencing; environmentalists trying to stop construction of a gas pipeline across land under the Appalachian Trail; victims of the 1998 U.S. embassy bombings in Kenya and Tanzania claiming punitive damages from Sudan, and others.

Although we do know that these 29 cases, with perhaps a few exceptions, will be decided in the coming weeks, we don't know yet what will happen to the 20 cases whose argument dates in March and April were postponed indefinitely by the Justices. Here is where that "unexpected element," the coronavirus enters the picture.

The court's postponement of March and April arguments was simple recognition of the fact that arguments would put at risk the health of the Justices, court staff, lawyers scheduled to argue and the public wishing to attend. The risk was particularly acute for the Justices, two of whom are in their 80s (Ruth Bader Ginsburg and Stephen Breyer), two in their 70s (Clarence Thomas and Samuel Alito Jr.) and two now 65 (Roberts and Sonia Sotomayor)—fully two-thirds of the court falling into the most vulnerable category.

In its announcement postponing the April arguments, the court said it was considering its options and alternatives if arguments could not be held before the term's end. Among those options is moving some of the cases to next term for argument and decision or deciding some cases on the briefs submitted by the parties. Justice Ginsburg has said that the briefs are the most critical part of the decision process.

The 20 delayed arguments include some time-sensitive cases. For example, a New York grand jury and two U.S. House committees are waiting for the justices to resolve their fights with President Trump over access to his financial records for their ongoing investigations. Google and Oracle have been in courts for nearly decade in a billion-dollar copyright battle that is now before the justices.  Pennsylvania and others challenge the Trump Administration's expansion of the "conscience exemption" for those objecting to providing contraceptive health insurance.

Many federal and state courts have embraced technology, such as ZOOM videoconferences and even simple teleconferences, to hold hearings and arguments. But the Supreme Court has been loath to allow any camera or video, and even same-day audio, into its arguments. As the justices meet remotely for their private conferences, they conduct their discussions by teleconference.

On April 13, the justices, following the example of a number of federal and state courts, announced they would hold arguments by teleconference in select cases on six days in May with the justices and lawyers participating remotely: May 4, 5, 6, 11, 12, 13. The court also said it would provide an audio feed of those arguments to the news media.

The cases selected include the Trump financial records dispute, a First Amendment challenge to two states' "faithless elector" laws and the challenge to the Trump Administration's expanded "conscience exemption." 

In the end, the way forward for the U.S. Supreme Court's term is still unknown, at least until the Justices reveal more of their plans. And although briefs in the cases are the most critical part of the court's decision process, oral arguments are an important part of that process even if they don't change the minds of individual justices.

The court's decision to hold even limited arguments by teleconference is good news to the lawyers and clients who have poured countless hours and effort into getting their cases reviewed by the justices. And it's also good news for the public.

"Oral argument is one transparent part of the court process," said Tonja Jacobi of Northwestern University Law School, who studies the court's oral arguments. "Everything else is carefully calibrated. It's the one thing where you actually see justices thinking through questions, not having just the final product. I think that is really important for people interested in the law to see that process, also for the general public. They know there is accountability; people are being heard. I think symbolically that’s very important."

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.