Buffalo State College’s Peter Yacobucci on Changes at the Supreme Court

The coronavirus pandemic has touched nearly every aspect of life in America, including the United States Supreme Court, an institution noted for its resistance to change over the years. 

Because of concerns over the pandemic, the Supreme Court will hear arguments by teleconference in May. In conjunction, real-time, live audio of the arguments will be made available to the public. This is a first for the court. 

Arguments will be held May 4–6 and 11–13. Ten cases are on the docket (PDF, 75 KB).

Buffalo State College’s Peter Yacobucci, associate professor of political science, has studied the Supreme Court for over 25 years. He spoke about the court’s unprecedented decision, and what the future implications of the decision to hold public arguments may be. 

Yacobucci is an expert in constitutional law who has written and presented widely on the Supreme Court and has served as a political analyst for several local media outlets. He also volunteers with the Erie County Board of Elections.

How unusual is this decision by the Supreme Court?

The Supreme Court, probably more than any other institution in our government, is bound in tradition and routine. There’s a decorum in front of the Supreme Court that you just don’t see in any other government branch at any level. There’s been more change happening in the last four weeks with the Supreme Court than in the last hundred years. We’ve never had this before. The only thing that comes anywhere even remotely close to that is during the 1918 flu pandemic, they delayed cases by one month. They heard cases during World War II, and during the Great Depression. They stayed open when the government was shut down. The Supreme Court goes to work no matter what. That they are changing the way they operate is pretty dramatic, and it could have dramatic implications for the court going forward.

Why did the court decide to open arguments to the public?

It’s unclear why the court decided to do this. There is no reason why the court couldn’t have delayed the release of the audio tape per usual. There’s lots of speculation, though. Some is from the technical side, about not having staff on site to check for accuracy, and the fear that the audio would be hacked before posting. Other speculation is more political, in not wanting President Trump to cherry-pick and tweet portions of oral arguments that benefit his side before full audio is released.

Will this change how the court operates in terms of access?

Once the COVID crisis is over, and we go back to normal times, it’s going to be really difficult to go back and say, “Well, we’re going to go back to straight oral arguments, where we’re not going to allow in the press, we’re not going to allow in audio recordings of these.” The concern has always been that letting the media in and letting the public in would lead to grandstanding by the lawyers or even by the members of the court themselves. We don’t know if that’s going to happen, but just the technical aspects of it are going to be fascinating to watch.

Are there concerns about holding the arguments over a conference call?

In the court, there is not a person in charge of the oral arguments. It just opens up, and each advocate makes their argument. And then the justices, if they want, interrupt. They’re considered a “hot bench,” and some will do it more actively than others. If you’ve ever been on a conference call, there’s those weird delays and pauses, because we don’t have the visual cues that we use to enter and exit a conversation. They might be stumbling all over each other, and that’s assuming that all the technology works. Federal courts have begun to do this, and so have the appellate courts at the state level. There have been a lot of issues where they’ve had lawyers dropped during the middle of an argument. They’ve had justices that have been dropped. And then what happens? I think that certainly brings in due process. If I lose the case, and I know that one of the justices on the Supreme Court couldn’t hear a few minutes of my oral arguments, I’m certainly going to come back to the court and say, “Wait a minute. I didn’t get a fair hearing.”

Will this change how the advocates give their arguments?

This is all new to the lawyers. When they’re giving their argument, they’re training their eyes on the justices, and they’re looking at how the judges are reacting. And they’re adjusting their argument on the fly from what they’re seeing. They won’t get any of that. It’ll be interesting to see what happens.

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