WASHINGTON — The Supreme Court will resume hearing arguments in person when its new term starts in October, after a break of more than a year in response to the coronavirus pandemic, the court announced on Wednesday.
But the effects of the pandemic will continue to alter the court’s practices, the announcement said. The courtroom will not be open to the public, and the court will provide a live audio feed. The new arrangement is an interim measure that will remain in place for arguments in October, November and December.
“Courtroom access will be limited to the justices, essential court personnel, counsel in the scheduled cases and journalists with full-time press credentials issued by the Supreme Court,” the announcement said. “The court will continue to closely monitor public health guidance in determining plans.”
The court last heard in-person arguments in March 2020. The court’s initial reaction to the pandemic was to postpone some 20 arguments that had been scheduled for that spring. In the end, it heard 10 of them that May and deferred the rest to its next term, which started last October.
Since then, arguments have taken place by telephone. Though the court had long resisted live audio coverage, it provided a live feed of the telephone arguments, an innovation that now seems here to stay.
The telephonic arguments received mixed reviews. They were orderly, with the justices asking questions one at a time in order of seniority. Justice Clarence Thomas, who seldom asks questions from the bench, was a full participant.
But the telephone arguments lacked the dynamic quality of the free-for-all that characterizes arguments in the courtroom. The static, forced-march nature of the questioning diminished the ability of the justices to use their questions to talk to one another by jumping in to build on or respond to their colleagues’ concerns.
Chief Justice John G. Roberts Jr., who was an accomplished Supreme Court lawyer before he joined the court, has explained that oral arguments are largely a way for justices to begin their deliberations.
“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” he told students at Columbia Law School in 2008.
Those interactions largely disappeared in the telephonic format, which sometimes took on the disjointed quality of questioning at a congressional hearing.
Still, there were few glitches, putting aside what sounded like a flushing toilet.
When the court hears argument in person, most justices ask questions largely or solely of the lawyer for the side they will vote against.
In remarks in 2004 to the Supreme Court Historical Society, Chief Justice Roberts, then an appeals court judge, made a playful point grounded in widely accepted statistics: “The secret to successful advocacy is simply to get the court to ask your opponent more questions.”
In the telephone arguments, by contrast, in which every justice typically asks questions of every lawyer, it became harder for observers to predict which side was likely to prevail.