During the first months of the COVID-19 pandemic, the U.S. Supreme Court was forced to delay oral arguments in order to prioritize public health and safety. This left Americans wondering how cases would eventually proceed and whether the court would hold remote hearings in order to move cases ahead while complying with public health measures.
After months of delayed arguments, in May 2020, the court finally began to provide remote online access to live audio of oral arguments. The decision allowed people to listen to arguments remotely for the first time in the court’s history and proved to be a well-received step in increasing transparency. As the court returned to modified in-person arguments in the fall of 2021—allowing only the justices, counsel, and a few reporters in the physical courtroom—it continued to provide live audio access to listeners across the country.
The lack of access to the court restricts public understanding of the issues it deliberates—and who is allowed to shape that understanding.
Given the positive reception to these live broadcasts and the ease with which the court is able to provide virtual access to the courtroom, it should continue providing such access even after it resumes normal courtroom operations. Currently, it is unclear whether the Supreme Court plans to do so. But advocates have continued to highlight the importance of this issue, with 40 members of the Supreme Court Bar recently submitting an open letter to Chief Justice John Roberts urging the court to permanently livestream audio of oral arguments and continue posting recordings online.
In-person access to the court is limited
Audio access is necessary in part because gaining a physical seat in the Supreme Court is impossible for the vast majority of people. Only 50 seats are set aside for the general public, meaning that people must line up for hours for an opportunity to see a Supreme Court argument in person. High-profile cases require even longer wait times. People were in line for four days to hear live oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which bakery owners refused service to a same-sex couple under First Amendment claims.
Live oral arguments during the pandemic
Number of people who tuned in to listen during the first two weeks of Supreme Court arguments in May 2020
Number of people who had listened to at least one oral argument at the Supreme Court by November 2020
Percentage of Americans in May 2020 who wanted the Supreme Court to continue broadcasting live oral arguments after returning to normal operations
Moreover, many of the lucky few who obtain access to in-person oral arguments are not everyday citizens, but paid line-standers holding spots for lobbyists, interest groups, and the wealthy. This process disadvantages many people, including those with disabilities who are unable to wait in line for extended periods of time, people from out of state, and people unable to take time off from work, among others. Without the ability to pay a line-stander, significant numbers of Americans have little chance of gaining access to in-person arguments.
Without the ability to pay a line-stander, significant numbers of Americans have little chance of gaining access to in-person arguments.
It is therefore no surprise that the public has welcomed the opportunity to listen to live oral arguments online. More than 100,000 people tuned in during the first two weeks of the court’s May 2020 arguments. By November 2020, more than 2 million people had listened to at least one oral argument. And according to a May 2020 survey, more than 70 percent of Americans want the court to continue broadcasting live arguments even after it returns to normal operations.
Live broadcasts are critical to Supreme Court accessibility
All Americans deserve the ability to listen to arguments taking place in the nation’s highest court. Live audio access to oral arguments provides valuable information about the justices’ reasoning behind decisions, court norms, and the judicial process as a whole. The lack of access to the court restricts public understanding of the issues it deliberates—and who is allowed to shape that understanding. For instance, the pool of reporters granted permanent access to the court’s proceedings is disproportionately made up of white men, while press members working for publications geared toward communities of color are frequently left out of the courtroom.
Although the public has long had remote access to the proceedings of the executive and legislative branches, remote live access to the Supreme Court was a relative black box before the pandemic. Prior to 2020, the only way to access the court’s oral arguments remotely was through transcripts released hours after hearings concluded or via audio recordings that the Supreme Court began releasing free to the public on its website in 2010, but even these are delayed and only released on Fridays. This delay reduced the transparency of court proceedings and hampered news coverage of key decisions.
Transparency advocates have urged the court to make its proceedings more accessible for decades. C-SPAN filed its first formal request to bring cameras into the Supreme Court in 1988, and pilot programs in 1991 and 2011 brought cameras to 26 lower federal courts without issue. Critics of cameras in the courtroom have cited concerns such as potential changes in the tenor of counsel arguments or grandstanding for the cameras, as well as the worry that parts of justices’ statements would be turned into soundbites with no context. As the federal pilots of cameras in the courtroom showed, however, counsel arguments remained the same, and none of the feared changes came to pass. Moreover, the media already essentially take “soundbites” from the justices’ statements as quotes.
With high public demand for live audio broadcasts of oral arguments, as well as a lack of evidence against their use, there is no reason to discontinue this remote access to the Supreme Court. In 2020 and 2021, the court provided live access to oral arguments without encountering significant issues. Continuing to provide this access would ensure the public can engage with a vital American civic institution. In fact, a recent report from the Presidential Commission on the Supreme Court widely supported continued remote audio access to the court’s oral arguments.
While the court should continue to offer live audio access to oral arguments, calls for greater transparency by academics and court transparency advocates should not be ignored. Providing video access would give Americans who are unable to physically attend an experience akin to watching proceedings in person. Lower federal courts have been able to provide video access without issue, and live streaming is permitted in every state’s highest appellate court. Given the Supreme Court’s power in the lives of Americans, public accessibility has never been more important.
Indeed, providing access to the proceedings of the nation’s highest court is vital to ensuring its legitimacy in the eyes of the public. With the Supreme Court’s public approval rating at a historic low, opportunities to increase its transparency are critical to restoring faith in its functioning. The court must continue to provide access to a public eager for information. Access to live audio is vital to upholding an open, accessible, and transparent Supreme Court.