Uncertainty plagues rest of the Supreme Court's term amid coronavirus crisis
Washington — The Supreme Court's docket this year has been marked by a slew of high-profile disputes, with rulings anticipated in blockbuster cases involving gun rights, abortion and immigration by the end of June. But set against the backdrop of the coronavirus pandemic roiling the nation, the rest of the court's term has been thrust into uncertainty, including how it intends to handle the rest of its cases not yet argued.
For the first time since the 1918 Spanish flu outbreak, the Supreme Court postponed 11 oral arguments scheduled to be heard during its March sitting, but has remained mum on whether it intends to move forward with the nine arguments set to be heard in April.
Among the arguments pushed back last month were three cases involving subpoenas for President Trump's financial records and a high-profile copyright dispute between Google and Oracle. In April, cases on the docket include a closely watched legal battle over "faithless electors" and the Electoral College.
"This is uncharted waters for everybody, in every business, in every family and every part of the government, and the Supreme Court is no exception," said Tom Goldstein, a Supreme Court litigator and publisher of SCOTUSblog who was set to argue on behalf of Google before the justices on March 24.
While the coronavirus has left businesses shuttered and Americans in more than 30 states largely restricted to their homes, most of the Supreme Court's work is forging ahead. Even Justice Ruth Bader Ginsburg, who is 87 and has battled four bouts with cancer, had until recently been continuing her notorious workouts at the Supreme Court gym, according to Law 360, but stopped once the District of Columbia issued its stay-at-home order.
All the justices are healthy, according to the Supreme Court's public information office, and they still hold their weekly conferences during which they discuss pending cases, though only Chief Justice John Roberts has appeared at the court in person while the other eight joined by phone.
The high court continues to release its list of orders online and has also issued opinions, though they are not read from the bench as is typical, but posted online in five-minute increments. This week, that process hit a technical snag when the only opinion released Monday initially failed to load.
But the coronavirus has infected the Supreme Court's ability to hold oral arguments in person, and the justices have not yet laid out a plan for the cases scheduled for March or April, including whether they will hear arguments at all.
Goldstein believes the justices have several paths they can go down, including rescheduling arguments for some cases for its next term, which begins in October, or by deciding other cases summarily without arguments. In the scheduled cases, there are extensive written briefs already filed by the parties, as well as "friend of the court" briefs.
For the cases that are more time sensitive, such as the disputes over Mr. Trump's financial records, which involve investigations pursued by congressional Democrats and New York prosecutors, oral arguments could be pushed to May or June, Goldstein said.
"Oral argument is important but not critical," he said. "The court is still doing 95% of its work without serious interruption. It's just that oral argument is such a visible part of what the court does, so it's a weird situation because the court is one of the least-affected institutions, but the fact that so many people pay attention to oral arguments give the appearance that it's heavily affected."
Dan Epps, a law professor at Washington University in St. Louis and former law clerk for Justice Anthony Kennedy, said there is no rule that prohibits the justices from issuing a ruling without oral argument, though he noted the practice is to only do so in "cases where they're not making new law."
"On the one hand, they have the benefit of better briefing," he said. "But there is this norm at the court that arguments are important. I think the arguments are where the weaknesses on one side really emerge in a case, and you can see the court figure a case out in the course of an argument."
The Supreme Court could also stream oral arguments, though court watchers doubt the justices will rush to embrace technology, as they have been averse to do.
"It would be very unlike them, and they've made a real point of refusing to do any sort of livestreaming," Goldstein said. "I don't think this would be enough for them to change their minds."
Additionally, streaming audio or video of arguments would require the justices, attorneys and staff to appear in person, potentially violating federal guidelines to avoid gatherings of more than 10 people and limit social interactions. Six of the nine justices are 65 or older, putting them at higher risk of serious illness from the coronavirus.
Many of the justices have rejected calls for the Supreme Court to broadcast oral arguments, and the court allows for same-day audio only on rare occasions. Recordings from a week's arguments are posted online for the public every Friday.
"They don't want to open Pandora's Box, because once they do that, it's going to make it harder for them to claim, 'Well, we just don't want to do that in the future,'" Epps said.
The lower courts, though, have leveraged technology to continue operations. On Tuesday, the Judicial Conference of the United States, the policy-making body of the federal courts, temporarily approved the use of video and teleconferencing for certain criminal proceedings during the coronavirus crisis.
The panel is also allowing judges to authorize the use of teleconferencing to give the public and media audio access to proceedings. On Wednesday, the U.S. Court of Appeals for the Federal Circuit said it would provide access to live audio of each argument for cases heard in April.
Epps estimated that most of the arguments scheduled to be heard this spring could be postponed to the fall, especially as the Supreme Court has only agreed to hear a handful of cases so far in its next term.
"The world is not going to stop spinning on its axis if the court says we're just going to kick a bunch of these forward," he said.