Moving government into the 21st century

The U.S. Supreme Court and Congress must modify their rules to function in the current pandemic. Ten days ago, the court announced that it was cancelling its April oral arguments, following its earlier doing the same for its March argumentsNow the court has announced it will do oral arguments for six days in May, for a limited number of cases, by telephone. Two weeks ago, House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell rejected a request to allow the houses of Congress to vote remotely during the emergency. In light of technology and a public health crisis that is likely to continue for some time, these actions by the Supreme Court and Congress are unwise and unnecessary.

The Supreme Court should hold oral arguments over a platform such as Zoom, not by telephone. Zoom, or a platform like it, allows the justices and the participants to see each other and is much more like oral argument than use of telephones. Last week, the California Supreme Court for the first time held oral arguments by video conference. Other courts of appeals already have done so. In fact, I have several times in the past argued cases in the 9th U.S. Circuit Court of Appeals where one or more of the judges were participating remotely.

Technology like Zoom would allow all nine justices and the advocate to be on the screen simultaneously and for the justices to ask questions as always. My law school held the final rounds of its trial competitions and its appellate advocacy competitions in this way and it worked remarkably well.

In fact, for over a month, we have done all teaching by Zoom. Although education in this way never can replicate the experience of an in-person classroom, by all accounts it has worked well and has facilitated the lively exchanges that are characteristic of an argument in the U.S. Supreme Court.

The Supreme Court was scheduled to hear some enormously important cases in March and April, including whether the president, and those doing business with the president such as accountants and banks, have immunity from subpoenas. Also, the court was to hear an important intellectual property dispute, Google v. Oracle, cases about whether religious schools are broadly exempt from anti-discrimination laws and whether the Trump administration can create expansive exceptions to the contraceptive mandate under the Affordable Care Act.

The court has not said whether it will put the other cases not being decided by phone over to the fall, assuming oral arguments can be resume then, or decide them without the benefit of oral arguments. Both are bad alternatives. These are issues that need prompt resolution from the Supreme Court. Waiting to the fall for arguments means decisions likely won't be issued until spring 2021, almost a year delayed. Also, oral arguments are not an empty ritual. They are a crucial time for justices to voice their concerns and for the lawyers to try and address them.

The court has been slow to embrace technology, refusing to allow live broadcasts of its proceedings, or even video recordings. It is long overdue to change these restrictions, but whatever their merits in usual times, the COVID-19 pandemic makes it imperative that the court conduct its business through distance technology.

The court also said that it will allow the media to listen to the calls. That is not nearly good enough. All of the public should be able listen.

Congress must do the same. The Constitution, in Article I, section five states that "Each House may determine the Rules of its Proceedings." Rules about attendance and voting are set by each house and can be revised by each house. On March 23, 67 House Democrats requested that the House Rules Committee authorize members to vote remotely during the current crisis. Earlier, Democratic Senator Dick Durbin and Republican Senator Rob Portman introduced a resolution to allow remote voting in the Senate.

But both Speaker of the House Pelosi and Senate Majority Leader McConnel rejected allowing remote voting. This makes no sense at a time when air travel is strongly discouraged for health reasons. Besides, coming together to deliberate and vote risks spreading the disease. Already six members of Congress have tested positively for COVID-19.

None of this, of course, is to deprecate the importance of in-person oral arguments in the court or face-to-face deliberations on Congress. But at a time when those are too dangerous to occur, the court and Congress should use the technology of the 21st century. Over a century ago, during the Spanish flu, the Supreme Court cancelled oral arguments from October 8, 1918, until November 4. Then the court had no choice. Now there is an alternative for the Supreme Court and Congress and they should use it. 