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US Supreme Court heralds a new era during Covid-19 pandemic

By Jana Kalyan Das, Sandeep D Das and Ninad Dogra

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Change is the law of life. It is the obvious truth of history; and nothing better explains this principle than the current practice of telephonic hearings with live audio feed in the United States Supreme Court.

Recall the angry outburst of Justice David Souter who once had sarcastically quipped: “The day you see a camera come into our courtroom it’s going to roll over my dead body.” Such fulminations today are passé and have been dismissed as something belonging to the horse and buggy days. No doubt cameras are yet to be permitted in the proceedings of the United States’ Supreme Court, live broadcast of telephonic oral arguments coupled with live audio feed facility has commenced since 4th May, 2020, thus, heralding a new era.

In the past, the Spanish Influenza of 1918 and the Yellow Fever Pandemic had clogged the Court’s calendar thereby interfering with court proceedings. The IT revolution then was not even in its infancy and hence the benefits of modern technology were not available to the Courts. However, things had turned around the corner in the case of the coronavirus pandemic and technology could take the better of the pandemic. No doubt, the Court had to temporarily postpone the oral hearings scheduled for March and April sessions. But come 4th May, 2020, the US Supreme Court began hearing oral arguments remotely through telephone i.e. not from the hallowed precincts of its marble courtroom as before. The US Supreme Court, though as an institution had for long ignored the technological advancements and stuck to the customary style of courtroom conduct, with all its thrills and frills, it was never rigidly averse to introduce changes, albeit limited, in its practice and procedure. For instance, it had in the past decade or so attempted to keep up with the changing times and had made available the audio recordings of oral hearings of a Term i.e. only after the beginning of the next term to providing the same at the end of the argument week and now took a great leap forward by allowing live broadcast of the telephonic oral hearings. The present shift therefore from courtroom hearing to virtual hearing did not prove to be unduly upsetting for the Court.  

The Telephonic oral arguments coupled with live audio feed facility session of the US Supreme Court commenced from 4th May and continued till May, 13th, 2020. During such period, the Supreme Court heard telephonic arguments on various matters of general public importance, ranging from the question relating to registration of trademark of the term “Booking.com”; the question whether conditional release of federal funds to foreign affiliates of US organizations fighting HIV/AIDS abroad is violative of the First Amendment; the question of legal correctness of the Trump Administration’s Regulations granting further exemptions under the Affordable Healthcare Act, 2010 to individuals, institutions, including for-profit institutions, on moral and religious basis; the question of whether the exception of government-debt under the Telephone Consumer Protection Act of 1991 violates the First Amendment; questions pertaining to the right of the States to prosecute crimes by Tribal(s) within the Tribal regions; matters raising an important right of employees to raise issues of discrimination by their religious employers; question regarding production of financial documents of President Trump under a subpoena issued by the House and in a criminal inquiry during his tenure as the President and question constitutional validity of the law enabling the States to enforce how the presidential electoral casts his/her vote. Judgments in all these cases have been reserved.

Contrary to misapprehensions voiced by critics that the telephonic remote hearings would be a dull and drab affair, the proceedings witnessed several humorous exchanges between the Bar and the Bench. In one of the cases, Justice Sonia Sotomayor questioned the counsel for the petitioner whether the exemption sought on religious basis under the Trump Regulations relating to the Affordable Care Act, 2010, would also be raised against vaccines for Covid-19 by anti-vaccines supporters.

Not to miss also was the all-important fact that in the telephonic oral arguments which were broadcast live on various media platforms, Judges and lawyers participated most meaningfully with the 87-year-old Justice Ruth Bader Ginsberg, who is hugely popular amongst the members of the Bar and is affectionately called “Justice RBG”, joined the hearing proceedings from her hospital, where she was recuperating after a surgery for a benign gall bladder condition.

Despite the fact that it was the first time the US Supreme Court was hearing oral arguments telephonically and remotely, the Supreme Court’s Rules pertaining to time limitation of half hour to each side to present its case was not given a go by. Rather, an attempt to its strict adherence was set down, even though due to the complex nature of the issues involved in certain cases the oral arguments sometimes went a little beyond the prescribed time limit. The continuation of the rule of time limitation of one hour for oral arguments ensured timely, precise, accurate and crisp arguments which nevertheless were highly consequential.

Another noticeable and interesting change in the conduct of such oral hearings was the manner of interaction between the Bench and the arguing counsels. During the telephonic arguments questioning by the Bench to the Counsels was as per seniority of the Judges rather than spontaneous and random questioning by themas used to be the earlier norm and practice during the previous regime. Under the new dispensation Chief Justice, John Roberts was acting as an emcee (master of ceremonies) and regulating the court proceedings.

The holding of such telephonic hearings with live broadcast through the audio feed is historic. It marks the beginning of a new era in court hearings during difficult days of Pandemics and promises to become the new normal in the judicial systems of most jurisdictions. A large number of Americans now feel that the telephonic hearings coupled with live audio feed facility has served the cause of Justice and Democracy in far greater ways and is a welcome change from the earlier closed society like functioning i.e. ‘Oligarchy of the Robes’ to an open society like functioning i.e. promising to reach the ‘Man on the Clapham Omnibus’.

—Jana Kalyan Das is Senior Advocate, Supreme Court. Sandeep D Das and Ninad Dogra are Advocates-on-Record, Supreme Court

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