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Lawmakers want courts to keep expanded online accessibility prompted by pandemic

Even the famously cloistered Supreme Court wasn't immune to pandemic-driven changes

Tourists take photos on the steps of the Supreme Court on March 12, 2020, the day the building closed to the public.
Tourists take photos on the steps of the Supreme Court on March 12, 2020, the day the building closed to the public. (Bill Clark/CQ Roll Call file photo)

The COVID-19 pandemic forced federal courts to give the public more access to arguments and hearings over the past year, but it’s unclear how many of those changes will stick when courthouses fully reopen and a flood of backlogged cases is expected to hit the dockets.

As courthouses shut down across the nation to stem the spread of the novel coronavirus, all federal appeals courts provided livestreams of their arguments online. District courts provided remote audio access to some civil proceedings and some telephone and video access to criminal proceedings, a move Congress authorized in the March 2020 stimulus bill.

Even the famously cloistered Supreme Court couldn’t avoid change. Justices for years had brushed aside calls from members of Congress to have live audio or video of oral arguments, saying the cameras would harm the court’s work because lawyers might grandstand or justices might temper questions over fears that they would be taken out of context.

Usually watchers are limited to a few hundred who can fit inside the courtroom. But the Supreme Court made history in May when the justices and lawyers participated in the argument via telephone, and C-SPAN and others aired the first live internet audio broadcast of the high court’s proceedings.

“Remind me why they haven’t been doing this all along?” Gabe Roth, the executive director of the nonpartisan group Fix the Court, which advocates for accountability and transparency, said at the time.

Internet broadcasting went smoothly across the country for the most part, although there were a few hiccups that were common across all parts of America’s new remote work lifestyle. The sound of a toilet flush, for instance, aired in one Supreme Court oral argument.

Make permanent?

Illinois Democratic Rep. Mike Quigley, the chairman of the House Appropriations subcommittee that oversees funding for the judicial branch, said last month that he’s concerned these measures are seen as a temporary fix to operations during the pandemic.

“I would encourage the Judicial Conference to explore the benefits of permanently expanding its livestreaming practices,” Quigley said at a hearing on the branch’s budget. “Creating more ways for the American people to view and understand our democracy in action is critical to its success.”

Roslynn R. Mauskopf, the director of the Administrative Office of the U.S. Courts, told Quigley that there are challenges for the nation’s federal trial courts. Not all parts of the government use the same technologies, there are resource constraints, and the courts need to ensure that remote access doesn’t interfere with the court or undermine the integrity or fairness of those proceedings.

“There are ways we may be able to employ technology to save time, to save resources, but we really need to think about what has worked and what hasn’t worked during the pandemic,” Mauskopf said.

The courts have also been operating under a reduced caseload and with limited proceedings during the pandemic — and court officials expect that to change soon.

John W. Lungstrum, a senior U.S. district judge in Kansas and the chairman of the Judicial Conference Committee on the Budget, told Congress that many grand jury proceedings and jury trials were postponed and civil litigation slowed.

Courts and federal defenders are using video and teleconferencing technology for proceedings in criminal cases and for other court matters to the extent practicable. Probation and pretrial services officers are using new and innovative approaches, such as videoconferencing and social media monitoring, to remotely supervise offenders released from prison and defendants awaiting trial.

“We have successfully adapted many of our processes and proceedings to the current public health environment to keep court dockets moving where possible,” Lungstrum told the House Appropriations subcommittee. “But we anticipate a backlog of cases will flood the federal court system once vaccination becomes widespread and society begins a return to normalcy.”

In Kansas, they think that could be as early as April, Lungstrum said.

The real holdup has been criminal trials, which require many more witnesses and jurors involved, “and there is a pent-up demand that as soon as that safety green flag goes up, I think, there’s going to be a flood of jury trials sooner rather than later.”

The Supreme Court has announced its decision to continue holding telephonic oral arguments each month. April is the last scheduled month of oral arguments in the current term, before a summer break and a new slate of oral arguments in October.

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