Last week, the Supreme Court “postponed” the rest of its arguments for this term.  Due to the coronavirus pandemic, the Court will remain shuttered through April. The press statement noted that the Court would consider rescheduling “some” cases from its March and April sittings if public health guidance permitted it to do so before the end of its term in June.  If not, the Court would consider a “range of scheduling” and “other options.” The Court’s missive prompted Laura Ingraham to tweet:

 “Whole of government” approach? Congress is in recess and SCOTUS just cancelled oral arguments for the rest of the term. #GetBacktoWork

Ms. Ingraham has a point.  With so many American businesses shuttered, government, and more specifically, federal courts must continue to function. The United States Supreme Court is a court of last resort, granting certiorari in only a tiny fraction of the cases that seek its review.  The Court’s own rules governing certiorari explain that review is granted only in exceptional cases—mostly those involving a split of authority among the lower courts or an important question of federal law.  Because these cases are important ones in which a final resolution is important, and because the Supreme Court represents a branch of government, it must be open for business. 

The Court is wise to consider public health guidance–and indeed a number of the justices are at an age where a coronavirus infection could be serious. But the Court has options: Justice O’Connor once proposed deciding cases based just on the briefs. Lawyers often wonder whether oral argument actually matters, and indeed, the bulk of cases from the intermediate federal courts – the Courts of Appeals – are decided “on the papers.”  In most lower courts, it is only the unusual case in which oral argument is presented. Though most of the justices were reportedly open to considering the proposal, Justice O’Connor’s suggestion did not survive Justice Powell’s opposition, “I believe in the utility of oral argument, and also in the symbolism it portrays for the public,” he stated.

If the Court is concerned by the utility and symbolism of oral argument (and indeed oral argument is the most public-facing of the judicial functions), other options remain open to the Supreme Court include doing a (secure) Zoom session for the Highest Court in the Land.  The Court may be disinclined to go this route, as it could open the door to televising supreme court arguments. The debate about cameras in the courtroom has been heated – with Justices Sotomayor and Kagen coming out in favor, and Justice Souter famously remarking cameras would be allowed in the Supreme Court over his “dead body.” 

The most useful route might be to proceed with oral argument via teleconference—with all of the justices and advocates safely in their own locations.  The argument dynamic could be a little difficult and interruptions frequent, but as anyone familiar with supreme court arguments well knows, interruptions are frequent in live arguments, too.

Desperate times require desperate measures, so the saying goes. With so much of our shared American life having been upended, it is important that the Supreme Court find a way to proceed with business as usual.