The Massachusetts courts have consolidated all of their COVID-19-related emergency orders and procedures into a single website, which can be found here. I am sure that other jurisdictions are doing something similar, but this struck me as a particularly helpful site for Massachusetts practitioners and litigants.
A guest post by Lawrence Friedman
Writing in The Hill, Jonathan Turley argues that, in the midst of the COVID-19 pandemic, government should not stop working simply because members of Congress or the U.S. Supreme Court cannot meet in person. He suggests, for example, that the Court could hold televised arguments with only counsel and the justices present. This is in contrast to Chief Justice John Roberts’s decision “to suspend all further arguments,” despite a docket of cases that Turley rightly characterizes as of “enormous national importance, from health care to gun rights to immigration.” As he puts it, “because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.”
Of course, there is nothing in the Constitution that prevents the Supreme Court from operating virtually or televising oral arguments—the framers could not have imagined modern communications technology. Rather, the obstacle today remains the justices themselves. As retired Justice Anthony Kennedy once observed, there is a concern that the justices would not be able to refrain from “saying something for a sound bite.”
But the justices are not the only ones worried about the effect of remote access to oral arguments. Responding to Turley, Jonathan Grove contends that, because “the judicial branch is the only branch for which rigorous argument is still the business of the day,” cameras would threaten to turn the Court’s work into “source material for our watered-down ‘infotainment’ industry and angry Twitter partisans.” Further, he insists that the Court’s work is not essential in a time of crisis: “With some notable exceptions, meeting the immediate needs of citizens is a job that falls to state and local governments and, to a lesser extent, the executive branch. … Our constitutional system will not collapse if [the legislative and judicial] branches end up having to take extra time off.”
The problem with Grove’s argument, at least as it applies to the Court, is that, while we expect and hope the resolution of the disputes before the justices will be appropriately deliberative and thoughtful, that does not mean the work is less urgent. As of this writing, we are awaiting further clarity on a wide array of issues currently pending, including cases addressing the scope of the president’s ability to withhold information from Congress. This is an issue of particular importance at the moment, not just as it relates to Congressional oversight, but more immediately as it concerns President Trump’s recent suggestion that he has no constitutional obligation to share with Congress certain information related to the allocation of million of dollars under the new federal economic stabilization law.
Moreover, there is something odd about the argument that, were the public to have access to oral arguments before the Supreme Court – arguably, the least influential part of the appellate process – neither the justices not the advocates before them would be able to resist the temptation to grandstand. Many state high courts have experimented with televising oral arguments, and there is no evidence that either the judges or the attorneys treat the occasion with less seriousness, or that it has affected the sense of decorum that traditionally attends appellate arguments.
At the end of the day, we have passed the point at which it can be denied that the Supreme Court and its decisions have become more central to American life than the framers could possibly have imagined. It remains for others to debate whether this is a salutary development. The federal government in the past century has evolved to operate in ways the framers did not explicitly contemplate. One result has been conflicts about the separation of powers between the legislative and executive branches, and between the federal and state governments, which lawmakers and citizens alike expect the Supreme Court to resolve—and this is not to mention the myriad and important individual rights issues on the Court’s docket.
To the extent the Court has become the decisionmaker of last resort, the American people would benefit from seeing at least a glimpse of the way in which it works. Such access might provide some assurance to citizens who may question the Court’s role, or the pledge of its members to resolve the matters before them based upon argument and reason, rather than partisan affiliation. In the end, opportunities for the American people to see for themselves what the justices do could well enhance the respect upon which the Court depends for its legitimacy.
An extraordinary story out of California: Governor gives Chief Justice broad powers, including suspending laws, during coronavirus crisis. A snippet:
[Governor Gavin] Newsom’s order, issued Friday, gives [Chief Justice Tani] Cantil-Sakauye extraordinary powers, including the right to suspend laws.
The law is filled with deadlines, many to protect the rights of criminal defendants. There are public access requirements and rules about how legal matters should be conducted.
The governor said on Saturday the executive order was designed to give the judicial branch the flexibility that its leaders had asked for.
“This will allow them the ability, in real time, to meet the needs of the criminal and civil justice system,” he said during a COVID-19 news conference in San Jose.
Cantil-Sakauye said she assured Newsom that the new powers would be assumed “with utmost care and judiciousness.”
She stressed they were temporary and needed to ensure “the justice system will be available to those most in need.”
These are extraordinary times, and it makes sense to help an overburdened justice system be more nimble. But my immediate reaction is that even for the short term, this is a dangerous reallocation of power.
I really like this story from Law360, which profiles a number of lawyers and judges across the country who are emphasizing patience and kindness in a profession too often built on time pressure and adversarialism. Some snippets:
On Thursday, [Chief Justice Ralph Gants] sent a letter to the Massachusetts and Boston bar associations, urging attorneys to work with the courts and each other “to create their own version of [mobile triage] units” to figure out how to protect the most vulnerable, preserve individual rights, resolve disputes and carry on.
“If we stand strong, resilient, and adaptive, and work together as judiciary and bar to find ‘duct tape’ solutions to immediate problems that otherwise might take years to solve, we will leave this crisis with a better, more resilient system of justice,” he said.
The judge added, “And perhaps, if we do our jobs well, a future generation will say of us, ‘This was their finest hour.’”
U.S. District Judge Amy Totenberg of the Northern District of Georgia issued an order to every case on her docket with some words of advice to attorneys battling it out in her jurisdiction: “Be kind.”
“Be kind to one another in this most stressful of times,” Judge Totenberg wrote. “Remember to maintain your perspective about legal disputes, given the larger life challenges now besetting our communities and world.
“Good luck to one and all.”
A subscription to Law360 may be required to read the whole article, but access it if you can. It’s a nice reminder that when the moment calls for it, we can surely become our better selves.
With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.
Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.
There will be much more to say in this story as it develops. Stay healthy and sane, everyone.
Like almost every law professor in the country, I will be teaching from home for the next several weeks. It’s been a quick adjustment to become competent in online learning platforms, but we’ll make it work. Someone recently pointed out that Gen Xers like me are mentally prepared for something like this, having grown up in the waning years of the Cold War. My millennial students get props for taking all of this is stride as well. In the meantime, blogging may be a bit lighter than normal as I juggle work and family from home.
Last night, the governor of Massachusetts shut down all K-12 schools, and most restaurants and bars, until April 7. The state courts are following suit with their own precautions, trying to thread the needle between providing access to justice and protecting the larger needs of the community. The trial courts have announced a triage plan, effective this Wednesday, that will rely heavily on videoconferencing and staggered schedules. The Supreme Judicial Court (SJC) entered two additional orders, one postponing all new jury trials until at least mid-April, and the other limiting access to state court facilities for anyone who is likely exposed to or carrying COVID-19.
We are in the thick of social distancing now, and these measures all make sense. It will be interesting to see how much videoconferencing and online communication with the courts is retained once things return to normal.
Shortly after the White House and Congress announced that they would close to the public due to increasing concern over the coronavirus, the Supreme Court this afternoon followed suit. In a brief notice posted on the court’s website, the court announced that it would close to the public as of 4:30 p.m. today and would remain closed “until further notice.” However, the court indicated that its building would “remain open for official business” and that filing deadlines would not be extended.
The closure comes during what would normally be a relatively quiet period at the court: The justices wrapped up their February argument session last week and are not scheduled to hear oral arguments again until March 23. There has been no word from the court on whether the March argument session will take place as scheduled and, if so, whether members of the public will be admitted to watch the argument. Yesterday the public health department in Washington, D.C., recommended that “non-essential” gatherings of more than a thousand people be canceled as one way to fight the spread of the virus. The courtroom seats approximately 400 people.
The notice announcing the closure indicated that the Supreme Court’s building was being closed to the public because of “concern for the health and safety of the public and Supreme Court employees.” Two of the justices are in their eighties: Justice Stephen Breyer is 81, while Justice Ruth Bader Ginsburg will be 87 next week. Justice Clarence Thomas is 71, while three more justices are in their sixties: Justice Samuel Alito is 69, and Chief Justice John Roberts and Justice Sonia Sotomayor are both 65.
Gabe Roth, the transparency advocate from Fix the Court, sees this as another argument for livestreaming. He sent out the following press release this afternoon: