September 22, 2021
Once the pandemic is behind us (and, trust me, some day that really will happen), there are a number of things that won’t return to the way they were in the pre-COVID days. My church, for instance, currently offers an in-person service (masked and socially-distanced, of course) which one can also attend by Zoom. You can be certain that we’re going to dump the Zoom option after the pandemic has passed. Similarly, in the days before Zoom, I would drive one hour (each way) to sit in the court for an hour or two until my case was called, all for a five-minute status conference. Those hearings are now conducted remotely, and this system is so vastly more efficient that that will not change any time soon.
Meanwhile, a similar, Zoom-necessitated, change will stay the course in the highest Court in the land.
Yesterday, the Supreme Court announced that oral arguments will follow the format the Court adopted when it was conducting hearings remotely. Instead of reverting entirely to the traditional “free for all” format for asking questions, the justices will adopt a hybrid approach that sets aside time for the justices to take turns asking questions, just as they did when hearing oral arguments by telephone during the pandemic. Under this procedure, the first part of each argument will follow the format used before the pandemic, in which the justices – after giving the advocates a brief interval at the beginning to make their opening statements – freely ask questions. During this time, the justices can presumably interrupt both the arguing lawyer and each other at will.
But after each lawyer’s time has ended, each Justice will have the opportunity to question that attorney individually, beginning with Chief Justice John Roberts and continuing in order of seniority, just as the court did when hearing arguments by telephone during the pandemic. The Court did not indicate how much time each justice will have for his or her questions, although it does direct the arguing lawyers to “respond directly to the questions posed” and avoid making “any additional arguments not responsive to the question.”
One has to hope that live-streaming of the arguments is next on the agenda.