Live Oral Arguments And The World Spins Madly On | Thomas Speaks Again, Sotomayor Forgets To Unmute Again
May 5, 2020
IT'S A NEW DAWN, IT'S A NEW DAY
|Yesterday, the Supreme Court kicked off its May session of remote oral arguments and heard a case via teleconference concerning whether the addition of “.com” to a generic term creates a protectable trademark. It was a morning with many unusual, but welcome changes for SCOTUS. The lawyers on both sides of the case were women, and JUSTICE CLARENCE THOMAS broke from his usual silence to engage in the debate. Of course, the biggest news from the day was that even though the public could listen in live, the sky did not fall down upon us all.
THE WORLD DIDN'T END
|“Remind me why they haven’t been doing this all along?” That’s GABE ROTH with Fix the Court reacting to SCOTUS broadcasting oral argument live for the first time ever. It went swimmingly, Fix the Court reports, with all those concerns for over tech glitches proving to be totally overblown. There was a lull when JUSTICE SOTOMAYOR took an extra moment to take herself off mute, and at times audio level fluctuated. But all in all it was absolutely fine. Roth says, “The days of restricting the court’s proceedings to VIPs, the press and a few dozen members of the public are over. Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we’re past the pandemic.”
BRAND MANAGEMENT
|In its reaction to yesterday’s live broadcast, the Editorial Board of The Wall Street Journal focuses on JUSTICE CLARENCE THOMAS piping up with “a couple of questions.” The Ed Board suggests, “The court has nine more virtual arguments scheduled in coming days. What a great chance for the public to witness the thoughtful Justice Thomas in action, so unlike the negative caricatures of him. The teleconference format is a little awkward, but there’s a silver lining if it encourages the High Court’s most resolute originalist to make his baritone voice heard.”
A RAY OF HOPE
|Dahlia Lithwick and Mark Joseph Stern with Slate also reflect on yesterday’s historic arguments, which they note was overall a success for SCOTUS and for democracy. “There is no good rationale for keeping the public away from court proceedings, and the court’s tacit admission this week—that once they are doing arguments telephonically, they might as well broadcast them live—means at minimum that real-time audio should be the norm when the COVID-19 crisis passes. It likely also means that there should be video access as well. But perhaps the real lesson of Monday’s televised session is that the court is actually quite sensitive to public need for government in perilous times. And a public that may have tuned in to C-SPAN for a fairly arcane trademark dispute cannot help but have been reassured that at least one of the three branches of the federal government appears to be taking its responsibilities seriously, and doing so soberly and thoughtfully.”
TIME TO TRADE IN THE QUILL PENS
|“It’s about time. The Supreme Court has finally dropped its deeply entrenched tradition of self-important ceremony and has decided, starting this week, to hear oral arguments by remote feed, accessible to the public in real time. It took too long, and it required no less than a global crisis to force the court’s hand, but the justices have now done the right thing.” That’s Elie Honig writing for CNN about the Supreme Court at long last giving public live access to their hearings. She says it’s “time to drop the quill pens and dial into the conference call” because it’s the right thing to do, and in the extraordinary times, it’s the thing SCOTUS must do.
NEW NORMAL
|The Supreme Court today heard arguments over whether a U.S. law violates constitutional free speech rights by requiring overseas affiliates of American-based nonprofit groups that seek federal funding for HIV/AIDS relief to formally adopt a stance against prostitution and sex trafficking. Lawrence Hurley with Reuters reports that once again JUSTICE THOMAS spoke up to ask questions. Is it possible the man has stage fright? JUSTICE SOTOMAYOR again seemed to have forgotten to take herself off of mute when CHIEF JUSTICE ROBERTS prompted her to ask questions. She said after unmuting herself, “I’m sorry, chief. I did it again.”
ON DECK
|Tomorrow the Supreme Court will hear arguments concerning contraception coverage. Richard Wolf with USA Today gives us the back story and writes, “Following passage of the Affordable Care Act in 2010, the Obama administration mandated that most employers provide such coverage, exempting small businesses as well as churches and other houses of worship. Religious charities, hospitals and universities were allowed to have the coverage provided directly by their insurers. In 2014, the Supreme Court ruled 5-4 that privately held corporations with religious objections, such as Hobby Lobby, deserved the same escape route. Then in 2016, a shorthanded court with only eight justices failed to decide if the religious non-profits could wash their hands completely of the contraceptives coverage, rather than pass it on to their insurers. Instead, the court sent seven cases back to federal appeals courts in search of an elusive compromise. Now the dispute is back, but with several twists: The Trump administration is siding with the religious objectors, led by Little Sisters of the Poor, against the position taken by the Obama administration. It has sought to exempt groups with religious or moral objections but has been blocked by federal courts. The Supreme Court, previously deadlocked, now has a solidly conservative majority.”
WE'LL DO IT LIVE
|For info on how to listen live to the Supreme Court’s remote oral arguments this month, go to Fix the Court’s schedule of cases. You’ll find information on how to access the live feeds, as well as some background info on the cases that will be argued.