Holding oral arguments during the coronavirus pandemic

Like other government institutions, the Supreme Court is figuring out how to function during the coronavirus pandemic. So far, it has continued its normal business, while closing the Supreme Court building to public visitors. It hasn’t yet needed to do more, because the justices held their last public session on March 9, and aren’t scheduled to take the bench again until the March argument session begins on March 23.

Here is how the court would ordinarily conduct its public session on Monday, March 23. At 10 a.m., it would grant motions to admit lawyers to the Supreme Court bar and hold two oral arguments.

That day, the courtroom would hold 12 different groups of people: (1) the nine justices; (2) administrative and courtroom staff; (3) law clerks; (4) police; (5) guests of the justices; (6) arguing counsel and co-counsel; (7) reporters; (8) lawyers being admitted to the Supreme Court bar; (9) members of the Supreme Court bar; (10) guests of the parties with reserved seats; (11) members of the public with reserved seats; (12) members of the public attending the full proceedings; and (13) members of the public briefly viewing the proceedings for a few minutes.

Because virtually all these people would be sitting in very close quarters in the courtroom, the coronavirus means that it isn’t practical to hold the proceedings as usual. At a bare minimum, the following would have to happen:

  1. The court would exclude the general public (groups 11, 12 and 13) and members of the bar (group 9).
  2. The court would cancel or defer in-person bar admissions (group 8) and exclude the participants.

Those groups make up most of the people ordinarily in the courtroom—maybe 80 percent. With them excluded, it would probably be possible to engage in the recommended “social distancing” and otherwise conduct the proceedings as usual. (That includes social distancing between the justices, who have space between themselves on the bench.)

The court may go that route because it places significant weight on consistency and functioning even when other governmental institutions cannot. Prominent examples from the past include the court’s continuing to hold public sessions during storms that shut down much of Washington, D.C.

There are significant differences between this circumstance and those storms, however. The court would be holding sessions that are closed to the public, rather than open. In the January 2016 snowstorm, only two members of the public came to arguments. But the session was technically open to all who wanted to attend.

I don’t know of a precedent for holding oral arguments that are formally closed to the public. But the court has wide discretion in how it holds its proceedings, and there is no law or rule that would prevent it.

There is no consistent practice in the courts of appeals. The nearby U.S. Court of Appeals for the 4th Circuit has deferred its upcoming arguments. The 9th Circuit cancelled its en banc proceedings, leaving panel arguments to their individual discretion of the judges on the panel. By contrast, the 2nd and 5th Circuits have directed that arguments will go on as scheduled.

In the most analogous circumstance (which I explore in some detail in an addendum below), the court deferred oral arguments. That was during the Spanish flu outbreak of 1918.

Whether the court will follow that precedent is uncertain. Spanish flu was much more virulent and much less understood. At the time, not only were schools closed (as they are in Washington, D.C., now) but essentially all public gatherings were banned. Also, the court was located in the Capitol, and both congressional galleries were closed. The court recommenced oral arguments when the galleries reopened.

That said, with no perfect precedent to go by, the Spanish flu probably does present the best model for the court to handle the coronavirus pandemic. The current data indicates that non-symptomatic individuals—including court staff and law clerks—can transmit the virus.

Coronavirus is most dangerous for older people. For a justice to become sick—potentially, to die—would be disastrous.

Inevitably, the court’s argument schedule also exposes the lawyers who are traveling to some risk. (I am scheduled to argue on March 24, but that isn’t an issue for me because I am local.) Some lawyers are also gathering for moot courts, although others have shifted to video conference. (I am doing two by video conference and two in person, for example.)

Holding oral arguments without the public is also problematic. They are “public” proceedings. The court’s recent practice suggests that it will not want to set a precedent by making oral argument audio available in real time or on the same day. When things return to normal, it would face considerable pressure to continue the practice. By contrast, the D.C. Circuit is continuing to hold oral arguments but has excluded the public from the courthouse and posted a reminder that it streams the arguments, so “[t]here is no need to come to the courthouse to have real-time access to arguments.”

More broadly, the court plays a signaling role in our society. Public health officials are urging people not to gather. It would be most consistent with that guidance to not hold oral arguments. Put another way, the court could hold oral arguments to show the public that things are business as usual, but that is arguably the wrong message to send right now.

The court has the flexibility to defer oral arguments and see how the situation develops. That is how it responded to Spanish flu. It could hold additional arguments in April; three of the April argument dates currently have only one argument scheduled, and afternoons are available every day. Or it could add additional argument days or weeks. Many of the cases could be argued next term.

Also, we generally think of the court’s calendar as having two different constraints: April is the last month for arguments, and June is the last month for decisions. But the court can change that schedule as it wishes. In the past, it has held arguments in other months as emergencies required. Notably, the justices’ ordinary travel schedule for July and August is very likely to be disrupted in any event—meaning they are likely to be stuck in Washington.

The only practical exceptions to the court’s almost total scheduling flexibility may be the cases dealing with the president’s tax returns, which are scheduled to be argued on March 31. There is some political imperative to decide those cases. But they are not so urgent that they couldn’t be argued in April and decided in June.

With little precedent to go on, it isn’t at all clear what the court will do. But past practice and the nature of the virus suggest that the justices should issue an order deferring the March oral argument calendar and see how circumstances develop.

Additional detail on the court’s oral argument schedule during the Spanish flu outbreak of 1918:

According to projects called the “Influenza Encyclopedia” and a historical review by Matthew Gilmore, October 1918 brought the Spanish flu to Washington, D.C., in a rapid series of developments that coincided almost exactly with the start of the Supreme Court’s term. Between October 2 and 4, Washington was designated a “sanitary zone” analogous to “military camps.” Schools, churches, city playgrounds and libraries were closed, and all public gatherings were canceled. People were discouraged from engaging in public gatherings. With respect to the federal government, the Library of Congress and the Senate and House galleries were closed. At the time, the Supreme Court was located in the Capitol on the Senate side in the “Old Senate Chamber.”

Health facilities—including a temporary emergency hospital—were overwhelmed. Ultimately roughly 3,000 Washington residents died between October 1918 and February 1919.

Churches reopened on October 31, and schools reopened on November 4, as did the congressional galleries.

With the resources I have available, it isn’t possible to reconstruct exactly how the Supreme Court handled oral arguments in light of the Spanish flu. We do know that the court largely followed the closure of the congressional galleries. That isn’t surprising, given that they shared a building.

Ordinarily, the first oral argument date of the term would have been Tuesday, October 8. But oral arguments did not actually begin until Monday, November 4.

In that time, it appears that the court was effectively playing it by ear, waiting to see how the situation developed. The court met as required by statute on the first Monday in October. That day, it announced that oral arguments would begin on Tuesday, October 8, and—as was its ordinary practice—released a “day call” of 10 cases for October 8. But it did not hold arguments on October 8; instead, it issued orders and adjourned until October 14. Ordinarily, it would have been in session from Wednesday, October 9, to Friday, October 11.

Subsequently, the court kept meeting to issue orders and push arguments back: on October 14, it set a new group of cases for argument on October 21; on October 21, it reassigned those cases to October 28; and on October 28, it reassigned them to November 4. It isn’t apparent whether the court met in a public session to issue those orders on October 8, 14, 21 and 28.

Ultimately, the court canceled 14 oral argument dates (October 8-11, 14-18 and 21-25). It seems to have been prepared to add additional argument dates to make up for those, when it could. The orders suggest that the court was prepared to hold argument in the week of October 28. Based on the practice in the 1917 and 1919 terms, that would not have been an argument week.

Only two of the 10 cases from the original “day call” were actually argued (that wasn’t particularly unusual); those arguments were deferred until November 12 and 13. It is not clear why, but it may have been necessary to do so for the lawyers to have time to travel once the court restarted arguments.

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Recommended Citation: Tom Goldstein, Holding oral arguments during the coronavirus pandemic, SCOTUSblog (Mar. 15, 2020, 5:22 PM), https://www.scotusblog.com/2020/03/holding-oral-arguments-during-the-coronavirus-pandemic/