Latest Question for Supreme Court: How to Rule on a Crowded Docket During a Pandemic

WASHINGTON — The Supreme Court, never the most transparent of institutions, has all but vanished.

It still issues decisions, like the one on Monday that refused to extend absentee voting in Tuesday’s elections in Wisconsin. But the justices have stopped doing the most public part of their job, hearing arguments, and the courthouse is closed to the public. The last 20 arguments of the term, which had been scheduled for March and April, have been postponed indefinitely.

That has left major cases in limbo, notably ones on subpoenas from prosecutors and Congress for President Trump’s financial records, which had been scheduled to be heard on March 31. Those cases were going to be a test of the independence of the court even before the coronavirus crisis complicated matters.

While the president’s free-form coronavirus briefings make him a constant presence in the nation’s consciousness, the court led by Chief Justice John G. Roberts Jr. has in important ways receded from view. Very little is known about how the justices are conducting their work in the midst of the pandemic or how they plan to proceed.

This presents the chief justice with a fresh set of challenges in what has already been a difficult year, and it is only April. He has said that he and his colleagues “don’t work as Democrats or Republicans,” but demonstrating that has required him to engage in a balancing act.

In January, he presided over the impeachment trial of Mr. Trump, with whom he has had a testy relationship, even as important cases concerning the president’s policies and business affairs were pending before the court.

In February, he declined to comment when Mr. Trump criticized Justices Ruth Bader Ginsburg and Sonia Sotomayor, two liberal members of the court, and called on them to recuse themselves from all cases involving him. In March, though, the chief justice did respond to remarks by Senator Chuck Schumer of New York, the Democratic leader, attacking Mr. Trump’s two appointees to the court, Justices Brett M. Kavanaugh and Neil M. Gorsuch.

And on Monday, he joined the court’s other Republican appointees in a closely divided decision that delivered a victory to Wisconsin Republicans.

Chief Justice Roberts’s next challenge will be how to handle the postponed arguments. Rescheduling most of them to the fall would seem harmless. The nation can afford to wait a few months to hear, for instance, whether Booking.com can trademark its name.

But deciding whether Mr. Trump’s accountants and bankers must turn over his tax returns and other financial records is more urgent. Deferring decisions on those cases until after the presidential election would strike many as a partisan act meant to aid Mr. Trump.

The court will not take that step lightly. The chief justice ordinarily takes the leading role in scheduling arguments. In the current crisis, though, the question of what to do about the postponed cases will almost certainly be resolved by the full court, either by consensus or by majority vote.

And it will be mindful of earlier cases in which it ruled promptly and unanimously required Presidents Richard M. Nixon and Bill Clinton to provide evidence.

The Nixon case led to his resignation in the face of mounting calls for his impeachment. The Clinton case led to Mr. Clinton’s impeachment, though he survived a Senate vote on his removal.

The other pressing case on the court’s docket concerns whether members of the Electoral College may cast their votes for presidential candidates other than the ones they had pledged to support. A decision by June would allow the court to act without knowing which candidate in the 2020 election could benefit from its ruling.

A decision after the election itself, by contrast, would again raise the specter of partisanship. That such a dispute might arise is not fanciful: The votes of only 10 “faithless electors” could have changed the outcomes in five of the previous 58 presidential elections. In the 2000 election, for instance, George W. Bush beat Al Gore by five electoral votes.

The court has another blockbuster on the horizon, a challenge to President Barack Obama’s health care law. But the justices took their time in agreeing to hear the case, ensuring that it would not be argued until the fall.

When the justices take the bench, their questions reflect intense preparation, mastery of the record and sheer brainy competence that is not always apparent in the other branches. Without oral arguments, the court’s work can feel thin and haphazard.

But the prospect of holding arguments at the courthouse itself anytime soon seems extremely remote in light of the health crisis and the ages of the justices.

Justice Ginsburg is 87, and Justice Stephen G. Breyer is 81. Four other members of the court — Chief Justice Roberts and Justices Sotomayor, Clarence Thomas and Samuel A. Alito Jr. — are 65 or older.

Justice Ginsburg has continued to come to the largely empty courthouse — to work out with her trainer.

“The court has set aside the limited private space next to its health facility for Justice Ginsburg to exercise,” according to the court’s spokeswoman, Kathleen Arberg. “Her doctors share her view that the training sessions are essential to her well-being. The space is being used exclusively by the justice. No other justices are using the space, and the employee gym is closed to all users.”

Justice Breyer has been working from his home in Cambridge, Mass., consulting with his law clerks by phone and email, and doing his part in the kitchen. Last week, he shared his recipe for Italian pot roast with The Wall Street Journal.

In a cryptic news release last week, the court gave no indication about whether it would decide the cases it has postponed by the end of June, when its term ordinarily ends.

It has four basic alternatives to hearing arguments at the courthouse in the next couple of months: deferring them to the next term, which starts in October; truncating the justices’ long summer break to allow for arguments in July, August or September; deciding cases based solely on written submissions; and using the modern technology familiar to every American working from home.

In earlier public health crises, the court simply put things off. It postponed arguments in 1918 during the Spanish flu epidemic, a recent news release from the court said. “The court also shortened its argument calendars in August 1793 and August 1798,” the release said, “in response to yellow fever outbreaks.”

Other courts are experimenting, with considerable success, with conducting oral arguments online while allowing the public to watch or listen. But the Supreme Court has long been allergic to full public access to its arguments.

It has never allowed camera coverage or live audio. On 27 occasions over the last two decades, it has released same-day audio. But its usual practice is to release transcripts within hours but audio only at the end of the week.

In the best of times, then, seeing a Supreme Court argument requires showing up in person. As an ambitious series of articles in Scotusblog has been documenting, as few as 50 seats are made available to the public in major cases, and citizens can wait for days in brutal weather for a chance to see their government at work.

Still, the prospect of the court allowing live remote access to its arguments even in the midst of a pandemic seems unlikely, if only because it would be hard to retreat once the crisis has passed.

The justices have not heard arguments since March 4, when they considered a challenge to a Louisiana law that could leave the state with a single abortion clinic. Eight days later, the courthouse was closed to the public. Four days after that, the court postponed two weeks of arguments.

In addition to the abortion case, the court’s most significant encounter with the subject since Justice Kavanaugh replaced the more moderate Justice Anthony M. Kennedy in 2018, the court will also rule on two other blockbusters, argued in the fall, in the coming months.

In one, it will decide whether a landmark civil rights law protects gay and transgender workers from employment discrimination. In the other, it will rule on whether Mr. Trump may shut down a program that protects young immigrants known as Dreamers from deportation and allows them to work.

In past years, those decisions would have been announced from the bench in the grand courtroom by the justices who wrote the majority opinions, often followed by an impassioned dissent. That ceremony is lost now, replaced by a visit to the court’s website around 9:58 a.m., followed by a couple of minutes of clicking the refresh button.


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