A legal debate on whether the travel reservation website Booking.com may register for a protected trademark was not expected to be a historic moment for the Supreme Court. But on Monday, the case U.S. Patent and Trademark Office v. Booking.com set two milestones: it was the first argument to be conducted remotely, and the first argument to have its audio live streamed to the public.
The coronavirus pandemic, of course, was the impetus for both changes. Originally set to be argued in March, the Booking.com case was postponed until this Monday. This was an important test run for the Court, as more listeners will surely tune in over the next two weeks to hear arguments for nine other cases, which will address more politically contentious issues. The cases cover high salience issues like exemptions to the Affordable Care Act’s birth control mandate and whether the House of Representatives has the power to subpoena the president’s financial records. In addition, controversial decisions loom in already argued cases, such as the fate of the DACA program, Louisiana’s abortion law, and employment discrimination against transgender people.
Fortunately for the Court, Monday’s hearing was a success and showed that live-streaming should be the model well after COVID-19.
The Court’s transition to live audio, though, was a long, bumpy road. For years, the justices pushed back against calls for live streaming, fearing it would undermine the benefits of oral argument. Instead, the Court would publish a transcript several hours after each hearing and audio recordings at the end of each argument week. This compromise, however, was not enough. Delayed transcripts and recordings ensured that the public only learned about oral arguments through a (sometimes partisan) filter. And unless members of the public waited in line overnight, few have the chance to ever watch proceedings live.
Despite the Court’s misgivings, live streaming is a vital transparency tool. A live, unfiltered look into the inner workings of the Court could help demystify the Third Branch and humanize an institution often and unfairly demonized by all political corners. Indeed, those who believe the Court conducts itself like a partisan congressional committee will be disappointed. During oral arguments, there is no grandstanding or time to pander to a national audience. The arguing lawyers represent a client who needs to win, which requires winning over an audience of nine––not cable news pundits. The justices themselves are more concerned with pressing advocates and persuading their colleagues to see complex legal issues their way.
By allowing live audio, the Supreme Court is not in new territory. Today, a majority of federal circuit courts and a growing number of state supreme courts livestream their hearings. In a letter  to Congress last year, the chief justice of the Michigan Supreme Court, Bridget McCormack explained that her court livestreams hearings because people “have a real interest in the court’s decisions as those decisions apply to them.” As to whether live audio had any negative effects, Beth Walker, a justice on the Supreme Court of Appeals of West Virginia noted in another letter  that she was “not aware of any negative consequences of this access during these past 30 years.”
Beyond these assurances, Monday’s hearing should finally ease any concerns about live audio for the Supreme Court. There were no significant audio glitches or gaffes. The tone and style of the justices’ questions were like any past argument. Advocates did not go rogue. Yet, there were some welcome—but perhaps temporary—changes. To avoid the potential chaos of a remote “hot bench,” the justices asked questions in turn, leading to a more linear and orderly debate. And Justice Thomas, famously resistant to asking questions during argument, even got in on the fun, pressing each advocates’ legal stance.
For the highest court, the once great unknown is now known: Live streaming works. It is an important transparency tool and improves many misunderstandings about the Court and its work. Live streaming should continue well after the Court meets in person again to hear cases. The public should expect it, policymakers should demand it and the Court should appreciate how it bolsters the legitimacy and understanding of this vital institution.
- “letter”: https://docs.house.gov/meetings/JU/JU03/20190926/110028/HHRG-116-JU03-20190926-SD002.pdf
- “letter”: https://docs.house.gov/meetings/JU/JU03/20190926/110028/HHRG-116-JU03-20190926-SD004.pdf