The Supreme Court Should Never Go Back to Its Pre-coronavirus Ways

Like so many parents who have been sheltering in place with their children, I have been conscripted into the role of homeschool teacher—or, more particularly, I am a teacher’s aide, charged with shepherding my elementary-school student through remotely assigned tasks. In this role, I have been reminded that simply arriving at an answer—even the right answer—is not enough. To get full credit, the student must “show her work,” carefully laying out the steps by which she arrived at the answer.

On Monday, the Supreme Court announced that it would show its work on a wider scale, hearing oral arguments via telephone and providing media outlets with a live-stream of the proceedings. This unprecedented move offers the prospect of greater transparency from a Court whose work has been uniquely—and stubbornly—sequestered from public view.

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Normally, members of the public are allowed to attend oral arguments, but access is limited, and often requires waiting in line overnight, particularly for the most controversial cases. Because the Court refuses to televise its proceedings, the rest of the world must make do with audio recordings of oral arguments, which, along with argument transcripts, are released days later. Justices’ conferences, where they discuss their views on cases, are conducted privately (and that is not changing). Only when decisions are announced do the majority of Americans get any sense of the Court’s thinking. The move to live-streamed oral arguments will, for the first time, offer all Americans real-time admission to the nation’s highest court, sating the interest of longtime Court watchers while also attracting new audiences.

The Court’s shift to telephonic oral arguments shows how substantially pandemic conditions have forced institutions to make accommodations in order to function in our new reality. In-person meetings are now conducted via videoconferencing; the messaging platform Slack enables team members to communicate with one another while working remotely. Going back to the old ways will be difficult.

At least as far as the Court is concerned, we shouldn’t go back. The Court’s switch to live-streamed oral arguments is an important and welcome concession to the current climate, but it is a move that should have happened well before a global pandemic demanded it. Even before the coronavirus, congressional proceedings were aired over C-SPAN, and the president, governors, and other government officials routinely appear on various news programs. Of the three branches of government, the Court is perhaps the least transparent, remaining doggedly shrouded from public view.

Why should this be the case? As much as Congress or the president, the Court serves an important function in our democracy. Indeed, the cases now slated for telephonic conferences concern a variety of issues of great public significance, including the scope of exemptions to the terms of the Affordable Care Act, and whether federal and state officials may subpoena the president’s financial records. The Court’s work shapes Americans’ lives in ways both profound and mundane. Yet most Americans are given relatively few opportunities to see or hear the Court at work.

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We are all adapting to pandemic conditions. When this crisis passes, we will sort through the rubble, deciding which pandemic-era practices to maintain, and which to abandon in favor of the old, familiar ways. The Court’s new transparency is a necessary accommodation of a global catastrophe, but public understanding and appreciation of the Court’s work are also necessary preconditions for bolstering and maintaining a healthy and thriving democracy. Given the opportunity to show its work to the American people, the Court cannot—and should not—go back.