Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

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. Continue reading “COVID-19 and the courts: Where we are and where we might be going”

What does a court hearing by videoconference look like? Here’s an example.

Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.

It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.

The Virtues of Remote Access to the Supreme Court

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.

Courts embracing video in wake of coronavirus pandemic

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.

U.S. Supreme Court closes in response to coronavirus threat

SCOTUSBlog reports:

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:

Given the crowds that often gather in and around the Supreme Court, not to mention the advanced age of several of the justices, it’s the right call to close the building to the public until further notice.
That said, if this state of affairs continues through March 23 – the next time the justices hear arguments – the Court should at a minimum permit the public to listen to a livestream of argument audio from its website.
We believe the Court already has this capacity, as it streamed a Justice Scalia memorial service in Nov. 2016, and any technological gaps could be filled in by the nearby D.C. Circuit, which since Sept. 2018 has offered live online audio for all of its hearings.
Live audio is the smartest way to balance the now-competing concerns of public safety and public access.

New Hampshire courts expand electronic case filing

New Hampshire’s court system is expanding the reach of its electronic filing program, with the addition of civil cases and name-change cases this year. It’s a relatively small amount of new cases (3700), at least in comparison to larger jurisdictions, but it shows the growth and success of the overall New Hampshire program. Of particular interest to transparency enthusiasts is that kiosks in every courthouse allow the public to access the electronic filings of any non-sealed case.