Livestreaming Arguments Can Reduce Polarization at the Supreme Court | Opinion

Earlier this month, for the first time ever, the U.S. Supreme Court broadcast oral arguments live. Anyone with access to C-SPAN radio, television or online could hear the Court's proceedings in real-time. Up to now, anyone with an interest in hearing oral arguments had only two options: wait in line to enter the building in-person or wait until the Friday of a week of oral arguments, when the Court would release audio of all proceedings at once.

Livestreaming is a small change. But the Supreme Court is an institution that prizes tradition and change doesn't come easily. For years, people have been asking for live broadcasts of Supreme Court arguments. The justices invariably resisted. One of their concerns was that livestreaming audio from the Court could politicize the institution in a new way. Perhaps advocates, or even justices, would be tempted to aim their remarks at the public rather than at persuading the Court. Maybe arguments at the Supreme Court would become vehicles for creating quotable lines suitable for television or Twitter, rather than for making serious arguments about the law.

These are reasonable concerns. At a time when public trust in government is near an all-time low, the Supreme Court has come out faring better than its coordinate branches. Most Americans (62 percent, according to Pew) say they have a favorable view of the Supreme Court. Polling last fall found that 57 percent of those surveyed said they trusted the Supreme Court more than the other branches—compared to only 22 percent for Congress and 21 percent for the presidency.

Maybe, just maybe, some of the Court's credibility comes from the fact that it doesn't have live broadcasts. Maybe it helps that members of the Court are not tempted to make provocative comments designed to get a lot of press attention.

But that doesn't mean that the Court is free from public relations concerns. To the contrary, there's a significant partisan divide in public approval of the Supreme Court. Republicans are much more likely to approve of the current Court than are Democrats; court-packing even made its way into the proposed agendas of recent Democratic presidential candidates.

Now the coronavirus pandemic has forced the Court out of its courtroom and into the world of teleconference arguments. With this drastic change to its day-to-day operation, the Court also entered the world of live broadcasts. Do these broadcasts increase the risk of partisanship and polarization in public attitudes toward the Court?

So far, I think the answer is no. To the contrary, it is as likely that the livestream of oral arguments will ameliorate polarization rather than exacerbate it. The livestream gives any interested member of the public an unmediated view of the Court. Listeners do not merely hear the most controversial moments of the argument—nor are intervenors able to cull just the most accessible moments of argument. Listeners who tuned in last week to hear arguments for a culture war case about religious liberty and contraception (the Little Sisters of the Poor convent) couldn't know in advance which topics might be coming. Third-party harms, national injunctions, church autonomy and state standing would all be covered. Some of these topics are easy to follow for non-lawyers; others are fairly esoteric, even for someone with legal training.

Listeners who care enough to listen to a livestream of a Supreme Court oral argument will get a sense of the complexity of the cases being argued. They get to hear a serious back-and-forth exchange between justices and counsel.

After the fact, of course, commentators could pull a controversial, provocative or embarrassing moment out of context and circulate it online or in broadcast media. (Last week, the sound of a toilet flushing during an argument made the rounds on Twitter.) But it isn't so very different from what commentators could do, anyway, as they previously reported on oral arguments in a pre-livestream world. They could seize on one line from the transcripts (which the Court has always released the same day) and run with it, perhaps distorting it. That's not new. Maybe it's worse when one can play an audio clip.

U.S. Supreme Court building
U.S. Supreme Court building Alex Wong/Getty Images

But if anything, that probably makes it harder, rather than easier. Audio gives more information: tone of voice, awareness if someone was interrupted (which can make reading a transcript especially confusing) and so forth. To give just one small example: when the Court heard arguments about whether the anti-discrimination rules of Title VII cover sexual orientation, Justice Neil Gorsuch began a question to one advocate by saying, "Assume for a moment that I'm with you on the statutory argument." Some news reports quoted this line without the introductory words, "Assume for a moment that." Without those introductory words, it sounded like the justice tipped his hand on a matter of statutory interpretation. But it was easy to leave off the introduction when one was working just with the transcript distributed by the Court: the transcript breaks Justice Gorsuch's question in two due to crosstalk by the attorney. Listening to the audio made it harder to miss the introductory nature of Justice Gorsuch's statement.

Whether the full context of this quotation changes anything about how one understands the Court or the arguments in that particular case is debatable. The only point, for present purposes, is that access to real-time audio might have made it easier to report accurately on the case.

It's possible, of course, that over time the livestream does fundamentally change arguments at the Supreme Court. Maybe justices or counsel will come to think more and more about the listening audience online. Maybe this will tempt them to grandstand. But it's not clear that this would be so much more appealing now in the era of livestreams than it was beforehand. Rather, the major effect of the livestream is just to make it possible for anyone intensely interested in a case, or in the Court more generally, to have direct access to the arguments in all their complexity.

It's a small change. But at the margins, it's likely to reduce, not increase, polarization surrounding the Court.

Lael Weinberger is the Berger-Howe Legal History Fellow at Harvard Law School.

The views expressed in this article are the writer's own.

Livestreaming Arguments Can Reduce Polarization at the Supreme Court | Opinion | Opinion