Furthermore, for weeks, the Supreme Court continued to require hard-copy filings, despite the obvious public health risks that they posed to lawyers who had to make trips to printers. The only pandemic-related concession the court made was a request that those filings be mailed rather than hand-delivered. Eventually, the Supreme Court relented and ordered that most common filings be filed electronically.
On April 13, the Supreme Court finally announced that it would be holding remote oral arguments for a limited number of cases postponed during March and April—and the cases not heard would be rescheduled for the October 2020 term. In addition, for the first time in the court’s history, the public would be allowed to listen to live oral arguments remotely. While this was a significant and welcome development, it does not overshadow the Supreme Court’s overall failure to provide clear guidance at the start of the crisis.
The Supreme Court was ill-prepared for a public health emergency
The Supreme Court’s haphazard response to the coronavirus crisis indicates that it did not have a pandemic plan in place—even though multiple experts had recommended that the United States and its courts be prepared for this kind of event. Unfortunately, this lack of emergency planning seems to be endemic of most of the federal court system.
The Administrative Office of the U.S. Courts (AO) provides a range of support services to the federal courts, including “legislative, legal, financial, technology, management, administrative, and program support services.” It also issues general guidelines for emergency preparedness and continuity planning; and its Judiciary Emergency Preparedness Office is responsible for developing continuity of operation plans in order to mitigate the effects of sudden disasters that might disrupt court operations. In 2012, there were several emergency preparedness summits for the federal courts, yet none seemed to have focused on pandemic-specific emergency preparedness. As a result, the judiciary’s response to the coronavirus was largely reactionary. In March, the AO created a task force to share guidance with the courts related to the coronavirus outbreak. However, this task force initially released little information to the public. In June, the task force released guidance on restarting federal jury trials.
The 1918 flu pandemic
This is not the first time the Supreme Court has faced a disruption of operations due to a pandemic. Before it postponed oral arguments this year, the deadly 1918 flu pandemic marked the last time the court’s schedule had been significantly disrupted. That year, the court ended up rescheduling 14 oral argument dates, delaying the start of its term by nearly a month. More than a century earlier, the yellow fever outbreaks of 1793 and 1798 also disrupted the Supreme Court’s calendar and led to a shortened term.
Given that a public health crisis has postponed oral arguments in the past and the persistent warnings from scientists that a pandemic was likely and that the government should be prepared, it is surprising that the Supreme Court still did not have a more robust plan in place before the current pandemic.
While all courts hear matters of high importance, the Supreme Court’s disorganized response to the pandemic is particularly alarming given the critical nature of its docket. Many of the cases initially postponed without guidance dealt with vital questions pertaining to government oversight and key constitutional issues. These arguments included cases regarding President Donald Trump’s financial records and the Affordable Care Act’s requirement that employer health plans cover birth control—both of which were heard remotely.
In addition, the Supreme Court is being asked to weigh in on matters arising from the pandemic itself. For example, it rejected a petition from a Nevada church arguing that state restrictions on church service attendance were unconstitutional. And the court has also been asked to weigh in on an election case out of Wisconsin regarding voting procedures during the pandemic, as well as a Pennsylvania case examining the legality of the public health order issued by Gov. Tom Wolf (D). Though the Supreme Court wisely declined to lift the public health order in Pennsylvania, its decision in the Wisconsin case resulted in people leaving their homes to stand in line and vote in the midst of a pandemic. The stakes of the cases on the Supreme Court’s docket can be incredibly high and can affect the functioning of the government and public health during a pandemic. Therefore, it is imperative that the court continue to operate efficiently during public health emergencies.
Further steps must be taken to ensure the Supreme Court is prepared for future disruptions and fully transparent
Although the Supreme Court successfully heard oral arguments remotely this past term, there are still a number of steps that need to be taken to ensure that future terms are not similarly disrupted.
The Supreme Court needs to establish—and make public—an emergency response plan for public health crises. The Judicial Conference’s Committee on Rules of Practice and Procedure recently solicited public comments on possible emergency procedures for the federal courts. At a minimum, any plan should comprise procedures for announcing postponements, including by setting a deadline for any rescheduling announcements for decision and argument dates. Furthermore, the court must detail how limited physical distancing will be enforced within the court building. It may also be helpful to set points of contact for attorneys and parties in need of updates on case statuses during emergencies.
In addition to establishing an emergency response plan, the court should provide greater clarity regarding any changes to future term dates. The Supreme Court’s term usually runs from October to June, but given the large number of cases remaining on the docket, it extended its term into July. Yet the court gave little notice before announcing additional conference or decision days, sometimes informing the public only days beforehand. In the future, the Supreme Court needs to provide greater notice to the public as to what it intends to do in case of substantial delays.
In addition, the Supreme Court needs to ensure that the public has continued access to live oral arguments. As noted, the court began hearing remote oral arguments in May. This positive development opens the door for continued access to the court remotely. Not only should it provide live audio of arguments that occur during the pandemic, it should also continue to do so once social distancing measures are relaxed.
Prior to the pandemic, the Supreme Court provided audio of its arguments, but this audio was typically released on Friday—sometimes several days after an argument had occurred. As demonstrated this past term, arguments can and should be broadcast live; the public supports this level of access. The Supreme Court’s decisions have the potential to affect the lives of millions of Americans; given these high stakes, the justices should allow people to see what happens at the court in real time. Seating at the Supreme Court is limited, and though live oral arguments are typically open to the public, very few are able to make it to the courtroom to see these arguments. In order to uphold its promise to the American people of treating everyone equally, the court should continue to provide access to people around the country who might not be able to see arguments in person.
In addition, the Supreme Court could use this moment to consider other reforms that might improve transparency. For example, given the importance of the Supreme Court’s docket, advocates have long vied for it to allow cameras in the courtroom—and some have noted that providing live audio could pave the way for such a reform.
Conclusion
It is imperative that the judicial system is able to operate effectively during pandemics. Already, the Supreme Court has been asked to weigh in on crucial cases regarding election safety and the legality of local and state public health orders. In the coming months, it will undoubtedly have to respond to additional legal challenges that could shape the country’s future.
The current emergency has highlighted the urgent need for the Supreme Court to develop a thorough pandemic plan. In the future, there will almost certainly be more pandemics and other national emergencies that will affect the judiciary’s ability to function. Next time, the Supreme Court must be better prepared. Moreover, it should not back away from the welcome transparency measures that it has implemented in response to the current pandemic.
Stephanie Wylie is the senior policy analyst for Legal Progress at the Center for American Progress.