COVID-19 and the courts: Where we are and where we might be going

A glance at the recent developments, and what to look for in the future.

It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.

Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May.

Simply holding hearings and oral argument in the midst of the pandemic is an achievement in itself, especially given how inexperienced most courts were with respect to remote adjudication even a month ago. And while telephone and video hearings cannot fully replicate the courtroom experience, they do provide many of the components of procedural fairness that are normally associated with courtroom hearings, including the opportunity to participate and be heard, the chance for the judge to show equal and dignified treatment of the parties, and space for witnesses and the public to reflect upon the trustworthiness of the court.

Transparency, however, remains a particular concern. The courtroom has traditionally been a place where the administration of justice is available for public view. If hearings are relegated to private telephone and internet connections, the public loses an opportunity to appreciate the parties’ substantive arguments, the issues of particular importance to the judge, and the judge’s treatment of the parties. Some courts have recognized this fact, making the videos of their hearings publicly available. But other courts have thus far declined to do so, even when there is no special privacy concern, and even though the very same hearing would be open to the public if it took place in the courthouse. The Supreme Court has charted a middle path, making available live audio of its telephonic hearings for the first time in its history. Even that move, however, has been greeted with cynicism in some circles as a far too limited approach, given the national importance of the Court’s cases and the Court’s longstanding reluctance to broadcast its oral arguments even in ordinary times.

Criminal justice and criminal sentencing. Criminal justice carries a special urgency, given the Sixth Amendment directive to provide criminal defendants with a speedy and public trial. It is therefore unsurprising that courts have prioritized the use of teleconferences and videoconferences in criminal proceedings. But not every criminal hearing is amenable to a remote process. The federal courts’ approach, for example, prohibits video hearings for felony pleas or sentencing unless the judge makes specific findings that proceeding by video is necessary for public health and safety, and that delaying the hearings would jeopardize the administration of justice.

Criminal sentencing is also being affected by concerns about the spread of COVID-19 among high-density prison populations. (Indeed, a recent study suggested that nearly 40% of all COVID-19 cases in Arkansas are located in a single maximum security penitentiary.) Some judges have already taken these considerations into account, and commentators have argued that the novel coronavirus represents “a turning point” in “how we think about imposing prison terms.” California has gone even further, implementing a radical approach that empowers its Chief Justice to suspend state laws in order to relieve pressure on the justice system.

Docket management. Even as they move some proceedings online, courts have been forced to postpone many other hearings and trials until this summer or beyond. There is certainly a decline in reported case activity in the federal courts. Delaying these scheduled events gave the courts (and their IT departments) an opportunity to get up to speed on videoconferencing platforms as soon as possible. But eventually these delayed hearings will have to be held, and some courts are already voicing concern about the heavy workload they will face in the coming months.

Adjudicating pressing social issues. The courts are no stranger to adjudicating high-profile, partisan fights. But those fights have erupted with ferocity this spring, as coronavirus-induced decisions by local and state authorities have provoked partisan battles with significant, time-sensitive consequences. This was seen most prominently in the recent legal dispute over the extension of the absentee ballot deadline for the Wisconsin primary — a fight between both major political parties (and their proxies, the state legislature and the governor) which eventually involved decisions by the state supreme court, a Wisconsin federal judge, and even the U.S. Supreme Court. Similar disputes over election protocol — clouded as they are in real concerns about voting access and public health — are arising all around the country.

Internal court operations. A primary theme of this blog is that courts are large organizations with a complex bureaucratic structure. They are able to marshal their resources and make decisions through established committees, ad hoc working groups, and other flexible knowledge worker teams. The federal courts, for example, employ a variety of Advisory Committees, which periodically meet to review rules and procedures, and recommend amendments. Those committees have continued to meet this spring via videoconference, as has their supervising entity, the Judicial Conference of the United States. Similarly, state court committees continue to meet by video- and teleconference, in order to keep up with their administrative responsibilities.

Judicial selection. The federal judicial selection process ground to a halt for a while, as the Senate was unable to meet in person to vet and vote on judicial nominees. Senator McConnell has promised to resume the confirmation process when the Senate returns, as early as next week. At the state level, the effects of COVID-19 concerns have varied with the state’s judicial selection method. In states in which the governor chooses a new judge from a slate of names provided by a nominating commission, the selection process can continue as long as the commission is able to meet via telephone or videoconference. In states that elect judges, however, the situation is complicated by mandatory social distancing and the timing of scheduled elections. Some would-be judicial candidates have had to petition the court to relax signature requirements in order to get on the ballot. And the results of one judicial election in Texas were cancelled and a new election ordered, in part because of concerns related to COVID-19.

Judicial performance evaluation. A number of states conduct routine performance evaluations of their judges, and the evaluation cycles are frequently timed to coincide with retention, reelection, or reappointment decisions. Several aspects of the evaluation process have been disrupted by the pandemic. For example, nearly all evaluation programs survey attorneys who have appeared before an evaluated judge, asking for their perspectives on the judge’s ability and willingness to adjudicate issues fairly and impartially. These attorney perspectives, however, are bound to be influenced in uncertain ways by the COVID-created docket delays, teleconferencing, and videoconferencing. Moreover, future evaluation cycles may suffer from a relative dearth of attorney responses, given the smaller number of attorney-judge interactions taking place. Some evaluation programs also ask citizen observers to sit in courtrooms and give their perspectives on the judge’s performance. This, too, has been rendered difficult or impossible by the closing of courthouses.

A somewhat more manageable problem pertains to the logistics of the independent evaluation commissions that review data on the judge’s performance. These commissions frequently make recommendations on whether each judge meets performance standards. Like nominating commissions in the judicial selection context, evaluation commissions have reportedly continued to do much of their work by videoconference.

Regulation of the legal profession. Admission to practice in most states is contingent upon requirements typically set by the state supreme court, including (in most states) passage of the bar exam. In light of the pandemic, a number of states have already cancelled or postponed their July 2020 exam administrations. In early April, the ABA Board of Governors approved a resolution urging states to adopt emergency rules allowing recent law school graduates to practice law without passing the bar exam. Some states have begun to implement this policy, at least with respect to graduates of certain law schools within their state boundaries — a concept known as “diploma privilege.”

How will these developments influence the courts and the legal profession once the pandemic has subsided?

Like American society as a whole, judges and lawyers have adapted to the reality of the pandemic with remarkable speed and dexterity. Court operations have shifted to remote settings on a large scale, and videoconference technology has been broadly embraced. From what I have read, both judges and lawyers are acting with a bit more forgiveness, understanding, and patience than before. There has been a discernible, if likely temporary, culture shift in American adjudication.

Still, it is simply too early to tell whether some of these changes will have staying power. Certainly the efficacy of diploma privilege will be reviewed and hotly debated in the coming years. Similarly, the long-term effect of this moment on the criminal justice system is simply dependent on too many unknowns, including future legislation, the capacity of the prison system, and public sentiment. The coronavirus experience will inform our discussion going forward, but there is no reason to think that the “new normal” will still be normal 12-18 months from now.

There has been sufficient experience with videoconferencing, however, to offer at least some preliminary observations. The rapid shift to video hearings, with relatively few hiccups, bodes well for the future of the technology in the courts. Videoconferencing is well-suited to handle many types of proceedings, and offers obvious benefits over telephonic conference calls. Indeed, it may be a particular boon to visiting federal judges — those who hear cases in other districts by assignment — by allowing them to see and better know the parties and their counsel, and by breaking down the boundaries of physical distance. In this sense, perhaps twenty-first century technology will allow the courts to create, at least metaphorically, the “flying squadron of judges” that Chief Justice Taft imagined a hundred years ago. Of course, videoconferencing cannot, and will not, replace the full courtroom experience — which may be particularly important for evidentiary hearings, sentencing, plea bargains, and trial. But one can confidently predict that videoconferencing will become an important tool for both state and federal courts in the coming years.

For those hearings that do occur via videoconference, there will certainly be calls for greater transparency and public access. Jeremy Fogel, a former federal district judge and the current executive director of the Berkeley Judicial Institute, recently made a compelling argument in this vein, noting:

Transparency is a powerful antidote to [declining public confidence in the courts]. Virtual technologies have potential for both court users and public education. While some proceedings are more amenable to virtual access than others, treating courthouse walls as an outer boundary for real-time information is hard to justify in this digital age.

The federal courts should take advantage of the unexpected opportunity that the COVID-19 pandemic has presented. They should thoroughly review their experience over the course of the present emergency and act boldly on the basis of what they learn.

I applaud Judge Fogel’s assertive view, but there is reason to be skeptical that federal courts will readily accept his invitation. History shows time and time again that the transparency movement is led by state courts, not federal courts. Even before the pandemic, states had opened their courtrooms (at least in some instances) to broadcast media, live audio and video streams, and reporters armed with cell phones and Twitter accounts. As noted above, Florida state courts have already developed sophisticated websites that allow the public to view live Zoom hearings across a range of cases, searchable by judge. This approach is consistent with both with First Amendment and procedural fairness principles.

The federal courts, by contrast, have long struggled with the transparency created by public access to video. Notwithstanding a pledge in the 2010 Strategic Plan for the Federal Judiciary to “harness the potential of technology to identify and meet the needs of court users for information, service, and access to the courts,” the Judicial Conference of the United States has remained reticent about providing even asynchronous electronic access to court hearings. Most notably, an excellent pilot project that recorded selected civil hearings (with permission of all the parties) and made them available for public view was allowed to lapse unceremoniously in 2015.

The sudden growth of videoconferencing for federal criminal hearings may eventually break the Judicial Conference’s resolve, although the headwinds remain strong. There are legitimate concerns about the security of Zoom and other videoconferencing technologies, as least as presently configured. And even if videoconferencing transparency is wildly successful in the state courts, the federal judiciary has never felt significant pressure to conform to state court practice or culture. The bottom line is that it will take time. My best guess is that eventually the federal courts will allow certain video hearings to be rebroadcast for public consumption, and perhaps some judges will be given special dispensation to post recordings of other hearings. As a general matter, however, public video access is likely to be brought into the federal system very slowly. I would love to be proven wrong.

Finally, it seems likely that both federal and state courts will turn more frequently to videoconferencing technology to help with certain internal matters. Given the ability to easily share screens and view colleagues, videoconferencing is well suited to replace older conference call technology. At the same time, we should not expect it to replace more important in-person meetings of court committees or judicial leadership, which almost certainly will revert back to in-person meetings as soon as practicable.

It bears repeating that the situation is remarkably fluid, both for the courts and for society as a whole. Things may look very different in late May, or even mid-May. Stay tuned.

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