I follow SCOTUS news pretty closely; the discussions below are a bit misguided. Audio transcripts of oral arguments are already widely available---you can even subscribe to the Oyez podcast feed and find them in your podcast queue a few days after the court hears the case. The new thing here is "live", so as a practical matter, it probably doesn't constitute a huge change. If there were an incentive for the justices to produce "sound bites", it would already exist. C-SPAN coverage will probably increase the visibility a little, but, having listened to many of the arguments this term, I'd say that most cases are too technical to be of much general interest.
A second point: oral arguments are performative. The cases are argued via written briefs and oral arguments provide a venue for the justices to question the petitioners about their arguments and air their responses to what the believe the other justices are thinking. Streaming the arguments, as opposed to making available courtroom audio after the fact, doesn't seem to change the dynamic much.
Many court watchers have taken this as an optimistic sign that perhaps the court will allow video. However, this is one thing that the court has strongly resisted. Some of the justices are known to prize their relatively low public profile and there's been speculation that maintaining that pseudo-anonymity is perhaps a reason for the hesitance.
> as a practical matter, it probably doesn't constitute a huge change
This is a reasonable point on which to disagree. (I disagree with it.)
The difference between a live performance and recorded one are huge. Playing soundbites on cable TV is, I believe, much more likely with live arguments than with recorded ones.
I agree with you. I follow SCOTUS cases within a couple of narrow interests, and there is always much discussion about what was really meant by questions that were asked. Much of that is due to lack of tone.
Hearing oral arguments is going to be interesting. I don't know that it's ever been available to the general public.
>If there were an incentive for the justices to produce "sound bites", it would already exist.
I think it already does exist, as there have been plenty of quote mining of judges at all levels that gets fed into news reports, many designed to stir outrage. To the extent that quote mining it a threat to the fair and just application of law should be an issue I think the legal system (among other groups impacted) should be more targeted at resolving.
I read and listen to Oyez a lot. From my persona experience, laymen might not get the things they are talking when they cite previous cases, some legal words might not easy to catch, and the judges most likely is questioning the briefs which won’t be available. Live audio might open interests to public when working from home, but nothing beats oyez’s synced transcript with audio. It will be interesting to listen to whether judges will change their way to question cases. Or more interestingly, when Thomas will say something
I support resisting video, especially if the justices are shown while arguments are being presented. They should focus on listening, not thinking about how their facial expressions will be dissected on the Internet tomorrow.
I'm hesitant about this. Separating the drama of a case from the logic of the opinion helps keep justices from becoming politicians. We don't want justices incentivised to work sound bites into their courtroom discourse.
On the other hand, most reporting on SCOTUS rulings is terrible. It focusses on the implications of the ruling and almost to zero degree on its legal logic. That makes the court feel like a political body.
Is it not? From the method that I've seen legal logic applied, it feels heavily political. What counts as a loophole that will be struck down and what counts as a loophole that will be allowed often doesn't have any core logical justification that isn't political. There are a bunch of rules, but even more exceptions. There is a bunch of consistency, but not on the level that you find in actual logic, math, or computational science (like with Turing machines). This has long led me to view it like a bunch of political entities playing pretend at being logical. Pretty decent pretend, better than most other systems, but when compared to truly logical systems, still clearly pretend.
You can also see this at macro scale application of the law. For example look at how the law is applied when you break it down by class, race, and sex. It clearly is done so unfairly, which leads on to conclude that either the unfairness is logical, or that the system isn't logical at the core.
Jury nullification is another example where it breaks down, as to say it doesn't exist when the things that logically give rise to it must exist is a contradiction.
SCOTUS is not apolitical. (No human institution is.) That doesn't make it a political body.
I've found helpful to read the official opinion of decisions I disagree with. Start to finish, including the dissent. With respect to modern rulings, I have yet to walk away finding the arguments abysmal. In almost every case, I disagree with the law, not the court.
When I disagree, it's because the law--as you say--had holes. The court fills these in, by necessity. On this, it's fair to find disagreement. But the degree to which these holes are filled is usually impressively restrained. There are very few modern case where, given the facts and circumstances of the case or controversy, and within the context of the surrounding law, I found the interpolation obscene.
> not on the level that you find in actual logic, math, or computational science
Courts aren't deterministic. That doesn't make them a political body.
It's an open debate as to whether we want the law to parse like code. I don't. As long as lawmaking is under human control, the law is comprehensible to humans and humans remain free agents, the law--and thus courts--will have a degree of unpredictability to them.
> Is it not? From the method that I've seen legal logic applied, it feels heavily political.
Courts are not supposed to be political. To the extent that they are, they are dysfunctional. Unfortunately, there are a lot of dysfunctional courtrooms today, including the Supreme Court—or rather, more accurately, there are a lot of dysfunctional justices who bring politics into their jurisprudence.
So I agree with OP—anything that adds political overtones to courtrooms probably isn’t a good idea. Let’s not encourage further jurisprudential dysfunction.
I'm against live streaming SCOTUS but I'm not convinced this incentive would exist. This is the last job any of these people will ever have. The only possible promotion is for the Associate Justices to become Chief Justice, and with Roberts on the court that is unlikely-bordering-impossible. There's literally nowhere higher for any of them to go.
However like dantheman said I can see this as a huge negative incentive for the attorneys trying to get a little more air time or exposure.
You cannot promote Associate Justices to Chief Justice. The framers explicitly prevented this since they didn't want associate justices to lobby for the job.
I don't remember where I read this, but it sounded plausible, given we've never seen this happen before.
I highly encourage anyone interested in the proceedings of SCOTUS to go to https://oyez.org/ for an excellent and well-typeset feed, complete with audio and the official transcripts (be careful with the official transcripts, they sometimes say the opposite of what the audio says, no joke).
Here's a recent example, a petition by the Attorney General and the FCC against AAPC for robocalling, that is pending argument:
Here's one, a petition against the Attorney General seeking relief from removal after committing three felonies, that's been argued and decided:
Can a lawfully admitted permanent resident who is not seeking admission to the United States be “render[ed] . . . inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1)?
If anything based on some observations it has brought less sound bite seeking than before. Even Thomas asked questions apparently having shunned the somewhat chaotic methods in place before.
Other Federal Courts have gone to similar methods of operation with Judges asking questions in order of seniority. This format also benefits those following others because you have more time to order your thoughts.
> We don't want justices incentivised to work sound bites into their courtroom discourse.
Although foreign to many in our field, arguably the most important work a judge does (besides the obvious) is communicate effectively and clearly. I trust them to be professional.
At the Federal level the median US politician sometimes has the power to glass countries and that power is typically exercised every so often. They actively work to redistribute and moderate the wealth and lives of the most materially prosperous country.
The justices are socially aware but there is a big gap between them and the professional politicians. They take substantially less advantage of opportunities to foist their human foibles on others. They are politicians, but of the nose-out-of-joint variety where their peers tend to be limbs-strewn-over-an-area types. The difference is large enough that they don't really merit the same label.
It'd be nice if the US kept them from getting more politically active. The best Supreme Court is a quiet and sleepy one.
I think live streaming is terrible for supreme court. Especially since the oral arguments are the least important part. It's good for them just to release everything at the end of year in June.
If anything this will encourage lawyers and justices to get in interesting tidbits so it can be part of the shit 24 hour news cycle...
Yes, but you seemed to hit on an important point - the questions inform how the case will be judged. The questions themselves, not the answers.
Generally speaking, it seems that the outcome of a case is pretty much decided before oral arguments are even presented. They seem to be treated as an opportunity for the Justices to fill in any unanswered questions and check their assumptions.
Not to mention that anyone could watch them live before this whole virus thing. You may have had to start waiting outside at like 4 a.m. sometimes, but you could. This will just broaden the reach of who can watch it live.
The benefit accrues to Capital owners, who have invested a great deal in control of the media and right-wing appointees to judiciary. Live-streaming allows them to enforce message discipline.
It's also worth noting that the format of oral arguments has changed for this period. Instead of a free-for-all questioning section, each justice will have a chance for N minutes to question the counsel (without interruption by other justices), proceeding in order of seniority. I can't say I'm a fan of this change.
So I'll preface this by saying I've never heard supreme court oral arguments before, so i don't know how they "normally" work, but yesterday I listened in on the first streamed oral arguments, and this change stuck out to me too.
Several times the counsel was kind of interrupted to move the questions on to the next justice in line, and the rate at which they moved through them seemed extremely fast compared to what I expected.
This is the highest court in the country, adding what feel like artificial time restrictions into the ability for the counsel to properly explain their reasoning and points seems like a really bad idea. (obviously within reason, you shouldn't have a lawyer that can talk for 20 hours to delay a case, but it seemed like during the "United States Patent and Trademark Office v. Booking.com B.V." part they were moving from justice to justice in what felt like under a minute or 2, cutting the counsel off every time.)
Again, I'm far from an expert here, so can any actual experts (or people with more knowledge of this world) offer some clarity on if this is "normal", and perhaps why it's like this?
Normal procedure is an hour of oral argument, with each side allocated 30 minutes (the side that goes first has 5 of its minutes (or more, if the attorney declines to use all the time first) shifted after the second side, for use as a rebuttal period). Sometimes, the Solicitor General is also asked to speak during oral argument, which gives each party 20 minutes to speak.
Why do you think it's for TV coverage? It seems plausible to me it's just better-suited for the medium (of a remote call).
If you listen to the in-person oral arguments, there's a ton of interruption and pre-emption all the time (with the Justices always winning the pre-emption battle against the attorneys), which works fine with the visual cues and 0 latency of being present together. If they tried to imitate that same style over a typical Zoom session it would be a disaster, people talking all over each other, etc.
Most Supreme Court cases can be observed, which is part of how we hear about them. In this day and age, it just so happens that observing them can now be opened up to everyone.
And yeah, like any new thing I expect there to be a few missteps at first but this is ultimately a good thing if it convinces Americans to be more aware and involved with Supreme Court picks going forward.
Many of the comments suggest there's a problem with Supreme Court live streaming due to soundbyte media coverage. If you take a step back, the problem isn't the Supreme Court, but the regulation of media. From 1949-1987, the FCC's Fairness Doctrine [0] assured broadcasters present issues in a balanced, equitable manner. Instead of holding back the oral arguments, we ought to consider how we discuss topics presented to SCOTUS in a fair and equitable manner.
The already dubious legal rationale for the fairness doctrine disappeared with cable and satellite television. The internet danced on the rationale's grave. The limited broadcast spectrum that is theoretically regulated to benefit the public rather than licensees no longer meaningfully limits the diversity of views and the ability to propagate them in audio/visual media.
A sizable portion of the Boomer generation gets the majority of their news from cable television. The generation has outsized influence on policies enacted and election results due to their presence in Congress and proportionate share of the electorate. The fairness doctrine, if it still existed, would positively impact the functioning of our democracy.
For those who want to watch on their TV but don't have cable or a streaming service that includes C-SPAN, it's also on Court TV's broadcast network [1]. I stumbled across it yesterday on channel 13.2 in the Seattle region. (It looks like Court TV also does a free live stream of the channel on their website). I don't know if they cover the whole session or not, as I only watched for a bit.
Readit News
A second point: oral arguments are performative. The cases are argued via written briefs and oral arguments provide a venue for the justices to question the petitioners about their arguments and air their responses to what the believe the other justices are thinking. Streaming the arguments, as opposed to making available courtroom audio after the fact, doesn't seem to change the dynamic much.
Many court watchers have taken this as an optimistic sign that perhaps the court will allow video. However, this is one thing that the court has strongly resisted. Some of the justices are known to prize their relatively low public profile and there's been speculation that maintaining that pseudo-anonymity is perhaps a reason for the hesitance.
This is a reasonable point on which to disagree. (I disagree with it.)
The difference between a live performance and recorded one are huge. Playing soundbites on cable TV is, I believe, much more likely with live arguments than with recorded ones.
I hope you're correct.
Hearing oral arguments is going to be interesting. I don't know that it's ever been available to the general public.
I think it already does exist, as there have been plenty of quote mining of judges at all levels that gets fed into news reports, many designed to stir outrage. To the extent that quote mining it a threat to the fair and just application of law should be an issue I think the legal system (among other groups impacted) should be more targeted at resolving.
Deleted Comment
On the other hand, most reporting on SCOTUS rulings is terrible. It focusses on the implications of the ruling and almost to zero degree on its legal logic. That makes the court feel like a political body.
Is it not? From the method that I've seen legal logic applied, it feels heavily political. What counts as a loophole that will be struck down and what counts as a loophole that will be allowed often doesn't have any core logical justification that isn't political. There are a bunch of rules, but even more exceptions. There is a bunch of consistency, but not on the level that you find in actual logic, math, or computational science (like with Turing machines). This has long led me to view it like a bunch of political entities playing pretend at being logical. Pretty decent pretend, better than most other systems, but when compared to truly logical systems, still clearly pretend.
You can also see this at macro scale application of the law. For example look at how the law is applied when you break it down by class, race, and sex. It clearly is done so unfairly, which leads on to conclude that either the unfairness is logical, or that the system isn't logical at the core.
Jury nullification is another example where it breaks down, as to say it doesn't exist when the things that logically give rise to it must exist is a contradiction.
SCOTUS is not apolitical. (No human institution is.) That doesn't make it a political body.
I've found helpful to read the official opinion of decisions I disagree with. Start to finish, including the dissent. With respect to modern rulings, I have yet to walk away finding the arguments abysmal. In almost every case, I disagree with the law, not the court.
When I disagree, it's because the law--as you say--had holes. The court fills these in, by necessity. On this, it's fair to find disagreement. But the degree to which these holes are filled is usually impressively restrained. There are very few modern case where, given the facts and circumstances of the case or controversy, and within the context of the surrounding law, I found the interpolation obscene.
> not on the level that you find in actual logic, math, or computational science
Courts aren't deterministic. That doesn't make them a political body.
It's an open debate as to whether we want the law to parse like code. I don't. As long as lawmaking is under human control, the law is comprehensible to humans and humans remain free agents, the law--and thus courts--will have a degree of unpredictability to them.
Courts are not supposed to be political. To the extent that they are, they are dysfunctional. Unfortunately, there are a lot of dysfunctional courtrooms today, including the Supreme Court—or rather, more accurately, there are a lot of dysfunctional justices who bring politics into their jurisprudence.
So I agree with OP—anything that adds political overtones to courtrooms probably isn’t a good idea. Let’s not encourage further jurisprudential dysfunction.
However like dantheman said I can see this as a huge negative incentive for the attorneys trying to get a little more air time or exposure.
I don't remember where I read this, but it sounded plausible, given we've never seen this happen before.
Here's a recent example, a petition by the Attorney General and the FCC against AAPC for robocalling, that is pending argument:
https://www.oyez.org/cases/2019/19-631
Here's one, a petition against the Attorney General seeking relief from removal after committing three felonies, that's been argued and decided:
Can a lawfully admitted permanent resident who is not seeking admission to the United States be “render[ed] . . . inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1)?
https://www.oyez.org/cases/2019/18-725
Other Federal Courts have gone to similar methods of operation with Judges asking questions in order of seniority. This format also benefits those following others because you have more time to order your thoughts.
Another view on the Supreme Court using Streaming
https://reason.com/2020/05/04/the-supreme-courts-surreal-sti...
Although foreign to many in our field, arguably the most important work a judge does (besides the obvious) is communicate effectively and clearly. I trust them to be professional.
Isn't it already so though? Since the judges are appointed by the sitting president (in case of a vacancy of course).
The justices are socially aware but there is a big gap between them and the professional politicians. They take substantially less advantage of opportunities to foist their human foibles on others. They are politicians, but of the nose-out-of-joint variety where their peers tend to be limbs-strewn-over-an-area types. The difference is large enough that they don't really merit the same label.
It'd be nice if the US kept them from getting more politically active. The best Supreme Court is a quiet and sleepy one.
If anything this will encourage lawyers and justices to get in interesting tidbits so it can be part of the shit 24 hour news cycle...
I can see no benefit coming from this.
Generally speaking, it seems that the outcome of a case is pretty much decided before oral arguments are even presented. They seem to be treated as an opportunity for the Justices to fill in any unanswered questions and check their assumptions.
Several times the counsel was kind of interrupted to move the questions on to the next justice in line, and the rate at which they moved through them seemed extremely fast compared to what I expected.
This is the highest court in the country, adding what feel like artificial time restrictions into the ability for the counsel to properly explain their reasoning and points seems like a really bad idea. (obviously within reason, you shouldn't have a lawyer that can talk for 20 hours to delay a case, but it seemed like during the "United States Patent and Trademark Office v. Booking.com B.V." part they were moving from justice to justice in what felt like under a minute or 2, cutting the counsel off every time.)
Again, I'm far from an expert here, so can any actual experts (or people with more knowledge of this world) offer some clarity on if this is "normal", and perhaps why it's like this?
Even before this change, there were very tight time limits on lawyers for oral arguments.
There are also far, far more cases asking to be heard by the Supreme Court than they can actually hear, so they need to keep the time limits short.
Is this the NFL we are talking about or the Supreme Court?
If you listen to the in-person oral arguments, there's a ton of interruption and pre-emption all the time (with the Justices always winning the pre-emption battle against the attorneys), which works fine with the visual cues and 0 latency of being present together. If they tried to imitate that same style over a typical Zoom session it would be a disaster, people talking all over each other, etc.
And yeah, like any new thing I expect there to be a few missteps at first but this is ultimately a good thing if it convinces Americans to be more aware and involved with Supreme Court picks going forward.
[0]: https://en.wikipedia.org/wiki/FCC_fairness_doctrine
[1] https://www.courttv.com/where-to-watch/
Justice Antonin Scalia reads Heller(2008)[1] for the majority: https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/...
[1] https://www.oyez.org/cases/2007/07-290