At any time, arguing any case before the US Supreme Court is challenging. The justices are among the best lawyers in the nation. They do their homework. They are prepared. An argument quickly focuses on the weak points on both sides. The whole purpose of the argument is to give the court a chance to work through the implications of each side. And for practically the whole of the Supreme Court’s history, that exchange has happened in person, with justices and counsel given the chance to see each other face to face and to read in the eyes and the body language of the justices what’s been heard and understood.
The coronavirus pandemic has changed all that. For the past two weeks, the Supreme Court has heard arguments by telephone. Not Zoom, not Google Meet, by telephone. The format is different, and much more strictly formatted. The lawyer on each side opens with a two-minute statement; each justice gets a couple of minutes of questions. The questions go in order of seniority. That at least makes it clear who is speaking and when.
It is difficult to say whether these changes make the process better or worse. In some ways, it’s clearly better: Justices are encouraged to participate, and more of them do. They come to the argument prepared with questions. They’ve learned how to present their questions concisely because time limits are severe. The format is the format of a congressional hearing, yet the justices get less time for their questions than a congressional representative.
But in other ways, there’s a clear effect of this new normal, and I’m not sure it helps. Oral arguments ordinarily find themes and a focus, and justices can build on — or resist — an evolving narrative. That’s not as easy when each justice comes armed with their own questions, keen to get them answered regardless of what their colleagues asked before. The process becomes less an exchange, and more like a survey, with the lawyers given a hundred words to answer whatever question was posed.
I experienced this new process on Wednesday in a case that addressed the question of presidential electors in our country’s scheme for selecting the president. The court will decide if members of the Electoral College can be required to vote for the candidate chosen by their state’s popular vote or if electors retain a discretion if things go sideways. I represented Washington electors. Throughout the argument, justices raised a concern about bribery. Could electors be bribed and potentially flip a presidential result? But it became hard for the focus on this question to stay focused.
The issue was repeatedly raised, and then interrupted. And it wasn’t until the fourth round of argument (two similar cases were consolidated — Chiafalo v. Washington and Colorado Department of State v. Baca — and each side had two arguments) that Justice Stephen Breyer framed the question in a way that showed its resolution: If there were bribery, it would only realistically appear after the Electoral College voted; if it appeared, then Congress could decide not to count the bribed votes.
Every lawyer feels responsible for not steering an argument better. And no doubt, I could have done more to put this issue to rest early on. But questions like this are ideal for the give-and-take of the regular system. Understanding could develop more quickly, and the focus could then move to the next line of questions. That is harder in this more sequential, audio-only-based format.
As the court moves forward, it might consider mixing a bit more of the best of both worlds. Briefs are a critical part of the process, no doubt. So too are these questions. Yet rather than giving up on the more conversational and interactive mode of oral argument, perhaps the questions could be answered in writing, in advance. Short answers — 150 words or less. That would allow for the argument to be something closer to the traditional form.
The process doesn’t require video. The court could stick with audio argument alone. Yet the technology could at least enable justices to raise a hand, virtually, rather than rotate in order. That would allow an exchange that was closer to a conversation. That format could thus better aid the court in its understanding of the issues together, as the best arguments in the traditional format always do.
The institution of the Supreme Court is an extraordinary part of American democracy. Whether one agrees with its decisions or not, the process of its deliberation is rare and important, always. The court displays an integrity in that process that should inspire other institutions within our democracy. Experimenting with new formats is important. But sustaining its integrity is essential. There’s good in this new experiment. Yet there’s more that can be done to mix this new good with good from the old.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.