Supreme Court hears first case by telephone, with audio livestreamed

WASHINGTON – The Supreme Court convened by telephone Monday for the world to hear, a step into the 21st century prompted by the pandemic.

For the first time in its 230-year history, the high court offered a live audio stream of an oral argument, going far beyond its usual protocol and giving advocates of greater transparency hope it will become a trend.

More:Supreme Court makes historic change to hear oral arguments over the phone and stream them live

To begin two weeks of telephonic oral arguments necessitated by the court's inability to pack its marble courtroom during the novel coronavirus pandemic, the justices selected a rather mundane and technical case: Can the hotel reservation website Booking.com trademark its name? 

Within minutes, it became clear this would not be a typical debate for the high court: Associate Justice Clarence Thomas, who almost never asks questions in open court, had queries for both sides.

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It also wasn't the usual case because the lawyers for both sides were women, who make up only a small percentage of the court's advocates. Veteran appellate attorney Lisa Blatt, who has argued more cases there (39) than any other woman, opposed Assistant Solicitor General Erica Ross. This time, Blatt was in her dining room and Ross in her government office.

For decades, the court ignored most of the technological and transparency advancements adopted by other branches of government. Even as lower federal and state courts began livestreaming and broadcasting sessions for public consumption, the highest court in the land remained cloistered.

Not only was live audio shunned – it was big news in legal circles a decade ago when the justices agreed to release recordings of their oral arguments once a week, rather than once a year.

The coronavirus pandemic has imposed social distancing imperatives on a court whose average age is 67, putting most justices in the risk category for COVID-19. It last heard oral argument inside the courtroom on March 4. 

Two months of scheduled oral arguments were postponed, and the court scheduled half of them for the next two weeks. The rest were pushed to the court's next term, beginning in October.

It turned out that putting nine justices and two attorneys on a live broadcast was no big deal. Supreme Court Marshal Pamela Talkin's traditional cry of "Oyez! Oyez! Oyez!" at 10:01 a.m. started things off. Chief Justice John Roberts called on Ross to begin, then kept a tight hold on the clock, cutting off justices and lawyers to assure the argument didn't run overly long. (It lasted 17 minutes beyond the usual hour.)

“Remind me why they haven’t been doing this all along?” asked Gabe Roth, executive director of the advocacy group Fix the Court.

“The days of restricting the court's proceedings to VIPs, the press and a few dozen members of the public are over,” Roth said in a statement released shortly after the hearing. “Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we're past the pandemic.”

There were very few technical glitches – no dropped calls, no muted lines. Associate Justice Stephen Breyer's voice was too muffled. Associate Justice Sonia Sotomayor didn't pick up on Roberts' invitation to begin her questioning, coming in only at the second invitation with "I'm sorry, Chief."

It was a good test run for the court, which will hear nine more cases by phone over the next nine days. By far the most controversial will be two cases May 12, when President Donald Trump's lawyers will seek to keep his tax returns and financial records from congressional investigators and New York prosecutors.

Wednesday, U.S. Solicitor General Noel Francisco and a highly renowned predecessor, Paul Clement, who has argued 101 Supreme Court cases, will be on the phone to argue that the Affordable Care Act cannot force religious objectors to provide insurance coverage for contraceptives.

Other important cases to be argued by phone include:

• Whether the largely unknown men and women appointed to cast their states' official electoral votes for president a month after the November election should be required to stick with the winner of the popular vote, rather than going rogue as "faithless electors."

• Whether religious schools can fire teachers without regard to employment discrimination laws because they have "ministerial exceptions."