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Bob Garfield: Today, the Supreme Court heard oral arguments about President Trump's tax returns and we the public got to listen in simply by going online.
Justice Sonia Sotomayor: Pardon sir, not presidential financials. We're asking for his personal tax returns before he became president. Those are very different things.
Justice Stephen Breyer: The fact that what I hold today will also have applied to a future Senator McCarthy asking me future Franklin Roosevelt or Harry Truman exactly the same questions, that bothers me.
Justice Ruth Bader Ginsburg: The aura of this case is really sauce for the goose serves the gander as well.
Bob The Supreme Court has resisted live streaming oral arguments for years. Previously, members of the public could only witness the proceedings live if they queued up outside the court to get one of the 50 tickets guaranteed to the public.
Newscaster: People are lining up over here just to get a seat inside the courtroom tomorrow morning, to see these justices announce this historic ruling.
Bob: Often people waited outside overnight in the elements with no public toilet for blocks, but amid the COVID-19 pandemic, the court is finally adapting. Oral arguments are now conducted via a conference call and the world can listen in by going online, no queuing required. So far, the online Supreme Court seems to be working pretty well, a couple of hiccups aside. Two days in a row Justice Sonia Sotomayor forgot to unmute herself.
Chief: Justice Sotomayor?
Justice Sotomayor: I am sorry, Chief. Did it again.
Bob: And the next day a justice of the Supreme court was caught with his or her pants down. You ask for increased transparency, you get increased transparency. Nonetheless, the benefits of public access, dictated at last by global crisis, have been widely heralded as a major step forward for our system of justice, as has expanded technology in lower courts around the country. But advance can be in the eye of the beholder. Douglas Keith is counsel in the Democracy Program at The Brennan Center for Justice at New York University Law School. Doug, welcome to OTM.
Douglas Keith: Thanks so much for having me.
Bob: Let's start with the high court, now, suddenly dragged, kicking and screaming, into the 21st century. The state-of-the-art before this month was what?
Douglas: Before this, the Supreme Court would generally release audio of oral arguments at the end of the week. Audio on rare occasions would come out on the same day, just for the major cases, Bush v. Gore, landmark cases about affirmative action. It was fairly rare, but generally, the public had to wait till the end of the week to hear the justices themselves speak about a case.
Bob: Transparent, but with a time delay.
Douglas: Yes, that's right.
Bob: The audio streaming seems to be a vast improvement, certainly, in immediate public access to the process. Immediacy is an unalloyed good, right? At least in this respect, immediacy, thumbs up
Douglas: In this respect, this is working well and it's giving the public new ways to understand its justice system, to understand some of its most important institutions. What the court is doing is allowing the public to more effectively think about a case, engage in the issues around the case. The public can listen themselves the day of, people are live blogging the arguments, there are many more ways that the public can engage around a case when it's actually being discussed.
Bob: Yes. Another big benefit, it seems to me, in a country that, at least theoretically, is built upon rule of law, the practical and symbolic value of continuity in the midst of a catastrophe. Thumbs up on those counts, but not without some sacrifice. The antiquated processes of 2019 did confer some advantages, no?
Douglas: Some court watchers have noted the way that oral arguments take place has also changed as the technology has changed. When all the parties were previously in the courtroom, you'd have justices jumping in adding onto one another's questions, following up lines of questioning. Now the court is going justice by justice. If anything, just to avoid the mayhem of a poorly managed conference call.
You also have justices speaking who normally would not. Justice Thomas has been asking a number of questions in these remote oral arguments when previously he was silent. The dynamics of these arguments have changed. I think it's not quite clear yet whether it's overall for the better or for the worse.
Bob: If the Supreme Court is a little late to the online party, other courts in other jurisdictions haven't been. What is the cost of delayed justice for the many?
Douglas: The costs of courts not being able to operate at this moment at all would have been immense. There are survivors of domestic violence who have sought orders of protection in this time and have been able to get the protection of the court through video proceedings. There are people who have been illegally locked out of their homes by landlords, even in places where there are eviction moratoriums in place, that have been able to get the support of the court via virtual proceedings.
Bob: Again, there are obvious opportunities and benefits here, but also some reasons for caution, for example, the notion that this cold filter of the technology, say live streaming, that could denude the process of the human element, the flesh and blood adversaries, making their case face to face. Will we miss that?
Douglas: Yes. We view people differently when they appear by video studies with mock jurors, finding that jurors viewed people as less credible when they appeared by video than when they appeared in person. At this point, one in six immigration proceedings takes place by video while already that's pre-pandemic. One study by professor Eagly out of UCLA found that people in removal proceedings are more likely to be deported if they are required to appear by video than if they appear in person.
Another study found that people who are seeking asylum were twice as likely to win their asylum claims if they appeared in person than if they appeared by video. In the criminal context, in Chicago, for the proceedings that went to video, the bail was set at a 50% higher level than it was for the proceedings that continued to take place in person. While the research is limited, we know that these video proceedings can harm defendants.
Bob: Why, what would be happening through live streaming, for example, that would so influence outcomes?
Douglas: The research hasn't arrived at any one answer. In fact, there are a number of possible explanations for this. First, it's important to note that there are different levels of access to the internet or high-quality internet or internet that is accessible by a computer rather than by a phone. There's differences in levels of access by income, by age, by race, by geography, once you're in the courtroom, even if you have access to these technologies.
There's a dramatic shift in the attorney-client relationship. It's harder for an attorney and a client to strategize before a hearing to share information in the middle of a hearing to constantly inform each other while a procedure is ongoing in such a way that helps the client's chances of succeeding.
Bob: I'm anticipating a frustration dream where I am in court, charged with the crime, and I'm having my trial by Zoom and watching my battery life on my smartphone just dissipate before my eyes. I wake up screaming.
Douglas: I think it was in March, an immigration judge was hearing a case involving seven detained children and ultimately had to postpone the proceeding because the technology was just so problematic. An asylum hearing that was taking place on the same technological platform, the audio kept bleeding into the other proceeding about whether these children would be able to remain in the country. Technology glitches are a real obstacle to fairness and to courts being able to really rely on these technologies.
Bob: For at least 30 years, there's been controversy about televised judicial proceedings, partly based on the premise that judges will go all judge Ito and start performing instead of adjudicating. There's one study that shows that judges in streamed court proceedings aren't changing their stripes, but the defendants are nonetheless at a disadvantage. It's not the judge, it's everything else?
Douglas: It may not just be the ultimate decision that is impacted. It could be every step along the way. At least one study out of UCLA found that what seemed to be changing the outcomes was a general disengagement with the legal process. By the person appearing by video, a general feeling that the procedure was unfair, or not as real as one that you are attending in person, which led people to seek representation less often, to seek certain forms of protections from the court less often, even if they were entitled to those protections.
Bob: In this country, we cherish access for criminal defendants, for litigants to the justice process. What you're saying suggests that there are degrees of access. I don't know if you'll like this analogy, but you can have the Platinum health care plan or you can have the HMO. Are we saying that build-out of a vast system of judicial HMOs?
Douglas: There's a real risk of creating new tiers of a justice system. You will have defendants represented by high resourced law firms who are capable of providing an environment and set of technology that will make sure that they appear in the best possible light. Then you will have individuals who don't have access to those resources and are left trying to attend a court proceeding by the Zoom app on their phone, and maybe left feeling differently about the justice system, maybe viewed differently by the people on the other end of the video conference.
Bob: Throughout the pandemic, we've learned that throughout the economy and the culture, things that we perceived as immutable turned out to be immutable, indeed, like going to work in an office or going to school in a school. Undoubtedly, some draconian changes will become the new normal. I wonder about this one, there are obvious advantages in cost and security and courtroom order, hell, parking. Let's assume, Doug, that Ecourt, to some significant degree, is here to stay. How do we make sure that technology serves justice and not erodes it?
Douglas: It seems highly likely that some increased reliance on virtual courts will be here for at least the medium term, if not the long term. The question is not should courts stop with these procedures? It's, how do they mitigate the harm that the research shows may, in fact, exist around these proceedings? Foremost, what courts can do in this moment, is listen to the people who are going to be most impacted if this transition to virtual proceedings does not go well. Already, these advocates are putting forth some requests of court systems.
There's been a demand for only holding proceedings virtually, to which parties consent. If the parties agree to hold it virtually, then it can move forward. Otherwise, the court should really hold off, at least for now. Advocates have said that there should be more opportunities for attorney-client communication, both on the day of proceedings and in between hearings to make up for that lost communication inside the courtroom. Of course, inevitably, if they're going to turn this way, are going to need more tech support to make sure that the quality of technology that's needed to ensure fairness exists.
Bob: Doug, thank you very much.
Douglas: Thank you.
Bob: Douglas Keith is counsel in the Democracy Program at the Brennan Center for Justice at the New York University Law School. Allowing Supreme Court proceedings to be broadcast live to the public might never have happened if it weren't for the pandemic. In fact, some of the justices were so vehemently against it that a few years back former OTM Producer Jesse Brennaman composed a song all about the fight to get cameras in the courtroom.
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