Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, April 20, 2020

Historic Arguments During Historic Times

I’m a Houstonian, so today’s below zero oil prices , a first from reports I’ve seen, have been top of mind as I work from my dining room table during the COVID-19 pandemic. That entire last sentence makes my head spin. Buyers paying sellers not to deliver oil. It’s historic. Just four months ago we were looking at the start of a new decade, full of hope. Now, even as I look out my window at the blooming flowers and see all the signs of spring (or early summer here in Houston), I wonder will my family be okay? My students, friends, and colleagues? My city? Our country? How much will institutions have to change? What will the world look like when it’s over?

As much as I love studying history, living through it is painful. Some of the historic events we are seeing, COVID-19 death rates topping the cause of death, record unemployment, speak of incredible individual suffering. Other historic changes are being forced upon institutions slow to change.

Over my last several posts, I’ve followed the Supreme Court’s postponement of Oral Arguments, then the holding pattern that arguments this month and next were in. Finally, on April 13, 2020 the Court issued a release stating that 13 cases would be heard by telephone. Here is an excellent discussion of the Court’s pivot.

As we saw in last week’s post by Texas Supreme Court Justice Eva Guzman, other appellate courts have moved oral arguments online with success. Interestingly, the Supreme Court has decided to do its arguments telephonically, despite the video conferencing technology that is readily available and being used in other courts around the country. As Amy Howe points out “They may have decided to go with remote arguments by teleconference in the short term, despite the potential effect on the dynamics of the arguments, because they would rather live with the longer-term implications – live audio versus live video – of that choice.” I’m interested to see how well the justices avoid talking over each other and what impact the format has on the advocates. As we’ve all probably seen in our own Zoom meetings, people talk on top of each other over video conference, too, so video conferencing may not solve much on that account.

On the whole, the Court’s shift to having some form of remote oral argument is a big one. It was likely a difficult decision, but it was a necessary one. In a time of great uncertainty, knowing that our highest court is operational and willing to decide the complex and important cases that come before can give some reassurance. It’s a signal that even though it isn’t business as usual, business is getting done.

https://lawprofessors.typepad.com/appellate_advocacy/2020/04/historic-arguments-during-historic-times.html

Appellate Advocacy, Appellate Court Reform, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink

Comments

I too find it interesting that, as your blog and SCOTUSBlog state, the level of technology with which the Supreme Court is comfortable is telephonic, not some form of video streaming. Even with glitches, it would seem video is clearly preferable.

Posted by: Peter Bayer | Apr 21, 2020 8:34:53 AM

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