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Fair Courts E-Lert: U.S. Supreme Court to Hear Some Oral Arguments by Telephone

This Fair Courts E-Lert highlights the U.S. Supreme Court’s announcement that it would hold some oral arguments remotely, the Senate’s decision to temporarily stall judicial confirmations due to Covid-19, and more.

Published: July 15, 2021

U.S. Supreme Court to Hear Some Oral Argu­ments by Tele­phone

On April 13, the U.S. Supreme Court announced that it would hear argu­ments in ten cases by tele­phone in May that were previ­ously post­poned due to Covid-19. The live audio feed will be publicly avail­able for the first time in the Court’s history. Among the cases the Court will hear remotely are those concern­ing Pres­id­ent Trump’s finan­cial records and Chia­falo v. Wash­ing­ton, a case on “faith­less elect­ors.”

The Court has previ­ously refused to allow video cover­age or live audio of oral argu­ments, only releas­ing audio record­ings of argu­ments on its website at the end of each argu­ment week (with the excep­tion of a few high-profile cases in which the Court released same-day audio). Over the years, the justices have provided a number of reas­ons for not live stream­ing argu­ments, includ­ing the possib­il­ity that listen­ers could get the wrong impres­sion from hear­ing the justices play devil’s advoc­ate.

Accord­ing to a poll of 1,000 Amer­ic­ans released by Fix the Court, 71% of those surveyed support the justices conven­ing remotely to hear oral argu­ments for the dura­tion of Covid-19, and 61% were in favor of tele­vis­ing those argu­ments.

Senate Tempor­ar­ily Stalls Judi­cial Confirm­a­tions due to Covid-19

The U.S. Senate will tempor­ar­ily pause confirm­a­tion hear­ings for federal judi­cial nomin­ees due to the Covid-19 pandemic.

Accord­ing to Politico, Senate Major­ity Leader Mitch McCon­nell (R-KY) said, “Of course, we will go back to judges. My motto for the rest of the year is leave no vacancy behind.” The Senate is sched­uled to return to Wash­ing­ton, DC on April 20, though several senat­ors have said that that date is likely to be pushed back depend­ing on the progres­sion of the pandemic. On April 15, Pres­id­ent Trump threatened to adjourn Congress so that he could continue to fill vacant seats in the judi­ciary.

There are currently 33 nomin­ees pending confirm­a­tion by the Senate. As of April 16, the Repub­lican-controlled Senate has confirmed 193 of Pres­id­ent Trump’s nomin­ees to the federal judi­ciary, includ­ing two Supreme Court justices and 51 appel­late court judges. This confirm­a­tion rate is the “[second] fast­est confirm­a­tion pace of all U.S. pres­id­ents” behind Jimmy Carter, and the “fast­est confirm­a­tion pace for federal appel­late judges of any U.S. pres­id­ent,” accord­ing to Judi­ciary Tracker.

Wiscon­sin Goes Ahead with State Supreme Court Elec­tion Amid Covid-19

On April 7, Dane County Circuit Judge Jill Karof­sky defeated incum­bent Justice Daniel Kelly for his seat on the Wiscon­sin Supreme Court, shift­ing conser­vat­ive control of the court from 5–2 to 4–3. The Bren­nan Center docu­mented at least $4.8 million in spend­ing by outside interest groups, the most in a state supreme court elec­tion this year.

Karof­sky won the elec­tion with 55.3% of the vote, though voter turnout in Wiscon­sin was down from 49% in the 2016 pres­id­en­tial primary to 31% for last week’s Demo­cratic pres­id­en­tial primary. Pres­id­ent Trump endorsed Kelly for the seat, though elec­tions to the Wiscon­sin Supreme Court are nonpar­tisan.

In light of the crisis, Governor Tony Evers attemp­ted to delay the elec­tion until June, but the Wiscon­sin Supreme Court struck down the governor’s order, and the U.S. Supreme Court over­turned a lower court decision extend­ing the dead­line by which absentee ballots must have been received. Both decisions broke down along ideo­lo­gical lines.

Courts Continue to Respond to Covid-19

As Covid-19 contin­ues to spread through­out the U.S., federal and state courts across the coun­try have contin­ued to adopt policies to respond to the crisis. The Bren­nan Center has been track­ing and analyz­ing these updates.

As of April 16, all 13 of the courts of appeals have opted to hold oral argu­ments remotely or have post­poned those proceed­ings through at least part of April. Most of the 94 federal district courts have also opted to halt certain in-person proceed­ings, includ­ing jury trials. Simil­arly, more than half of state courts have limited or delayed in-person proceed­ings, and most states are requir­ing or encour­aging the use of virtual hear­ings.

Immig­ra­tion courts, however, have made minimal changes in response to the crisis, largely remain­ing open. Unlike other courts, immig­ra­tion courts are controlled by the Depart­ment of Justice and its judges are exec­ut­ive branch employ­ees.