‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
Lord Hewert, R v Sussex Justices
Today, May 4th, 2020, for the first time, the Supreme Court of the United States broadcast oral argument in a case involving Booking.com and modern trademark protections. This change comes as the Supreme Court cannot meet the hear oral argument in person during the Coronavirus pandemic.
The above quote is from a British case, but the quote is known in the United States as a fundamental principle of the importance of justice being accessible to the public. The Supreme Court has fifty seats reserved for the general public, and if you want to see a landmark case, you may need to camp out in front of the court overnight to get a much-coveted spot.
One of the most fascinating aspects were the questions posed by Justice Clarence Thomas, long famed for years of silence between questions to attorneys during oral arguments. He asked, “Could booking acquire an 800 number that’s a vanity number? 1-800-booking, for example, that is similar to 1-800-plumbing, which is a registered mark,” His question was directed at Erica Ross, assistant to the Solicitor General. He also asked questions of the Bookings.com attorney Lisa Blatt, a very unusual level of questioning from the usually silent Justice.
His change in demeanor maybe because the questioning format altered for the occasion. Chief Justice John Roberts called on each Justice for their question in a much more structured way than the usual shouting out method that has previously favored some of the more gregarious members of the court. The Justices could speak and question in order of seniority. Whereas in previous cases, the presenting attorney has had two minutes of uninterrupted time before the Justices asked questions in an often fast and spitfire manner.
The other possibility is that the members of the court, and Justice Clarence Thomas, in particular, felt more pressure from the occasion to put on a performance and ask the questions that listeners are waiting on. One of the critical arguments against using cameras in the court has always been that the Justices may feel added pressure to please the public or maybe overly aware of how their questions would be perceived and feel constrained from the asking.
There are other arguments set to be heard orally over a videoconference that will broadcast in this way, and the legal world will be watching to see what happens next. The court may go back to not broadcasting argument, but the precedent is set.
Other court proceedings have long been broadcast and even televised. Many individual states Supreme Courts here in the United States are televised or available for streaming from the court website. The highest courts of Canada, The United Kingdom, Brazil, and Mexico are all available for the public to watch or listen to, and the Israeli Supreme Court from April 16th of this year began a one-year trial of live streaming some arguments.
The experiences of these courts speak to the reasonableness of allowing cameras or at least audio recording in our highest court. Now that the precedent has been set by this trial run of audio broadcasting, and a more orderly questioning session, perhaps it is time to revisit the way justice in our highest court is “seen to be done”[1].
- Courtroom access: No “performances,” just a “massive civics lesson” when supreme courts overseas live-stream their hearings – SCOTUSblog, https://www.scotusblog.com/2020/04/courtroom-access-no-performances-just-a-massive-civics-lesson-when-supreme-courts-overseas-live-stream-their-hearings/ (last visited May 4th, 2020)
- COURTROOM ACCESS: NO “PERFORMANCES,” JUST A “MASSIVE CIVICS LESSON” WHEN SUPREME COURTS OVERSEAS LIVE-STREAM THEIR HEARINGS – SCOTUSBLOG, https://www.scotusblog.com/2020/04/courtroom-access-no-performances-just-a-massive-civics-lesson-when-supreme-courts-overseas-live-stream-their-hearings/ (last visited May 4th, 2020)
- COURTROOM ACCESS: NO “PERFORMANCES,” JUST A “MASSIVE CIVICS LESSON” WHEN SUPREME COURTS OVERSEAS LIVE-STREAM THEIR HEARINGS – SCOTUSBLOG, https://www.scotusblog.com/2020/04/courtroom-access-no-performances-just-a-massive-civics-lesson-when-supreme-courts-overseas-live-stream-their-hearings/ (last visited May 4th, 2020)
- COURTROOM ACCESS: NO “PERFORMANCES,” JUST A “MASSIVE CIVICS LESSON” WHEN SUPREME COURTS OVERSEAS LIVE-STREAM THEIR HEARINGS – SCOTUSBLOG, https://www.scotusblog.com/2020/04/courtroom-access-no-performances-just-a-massive-civics-lesson-when-supreme-courts-overseas-live-stream-their-hearings/ (last visited May 4th, 2020)
- R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (‘R v Sussex Justices’).
[1] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (‘R v Sussex Justices’).