forum

The Supreme Court has not announced whether it will resume normal operations at the beginning of October 2021-22.This article is a forum About how the coronavirus pandemic has changed the courts — and which of these changes are worth keeping.

Clare Cushman is a resident historian of the Supreme Court Historical Society. This article is adapted from an article she wrote last year about epidemics and the Supreme Court.

In the summer of 1793, due to shocking reports of an outbreak of yellow fever, the judges fled Philadelphia and adjourned hastily. Since Philadelphia was the capital of the United States from 1790 to 1800, the Supreme Court met twice a year in August and February. The judge carefully postponed the case to the term of office in February 1794: between August and November, 5,000 of Philadelphia’s 50,000 residents died in the epidemic. The second time was in 1798, when yellow fever hit again, the court suddenly postponed the August term and rescheduled the debate for the February 1799 term.

In response to the outbreak of these “infectious diseases”, Congress passed a “Quarantine and Health Act” on February 25, 1799, which included a judicial provision. Article 7 of the bill allows the Chief Justice to adjourn the court under “dangerous” conditions and to “transfer to the same area or other places in adjacent areas as he considers convenient.” However, it was not until 1918 that the Chief Justice faced a decision whether to hold a court during the epidemic. That fall, the global flu pandemic killed 3,000 Washington, DC residents in just a few months. The Supreme Court was housed in the Capitol at the time, so Chief Justice Edward White could not fully control the decision to allow the public to enter his court. Specifically, the old Senate where the court was held did not have a separate external entrance and was subject to the decision of the House Rules Committee on the building.

Nevertheless, the Supreme Court opened as usual on October 7, 1918, the first Monday in October after the summer recess. However, because the city was subject to a “restriction order” regarding public gatherings, the court “refused everyone except lawyers to enter the conference hall.” In an unprecedented decision, the House of Representatives voted that day to close its gallery to the public to prevent infection. The court officially announced that it will be closed from Tuesday, October 8 to Monday, October 14. But the gallery of the House of Representatives and the Senate did not reopen until November 4, when the flu finally subsided. The Supreme Court also reopened the same day, making a ruling in the morning and hearing three debates in the afternoon. After a month-long recess, the court had to catch up: in November, judges heard cases in court almost every day. The delay has put more pressure on the already crowded semester.

The next time the court was affected by a public health crisis was in 2001, when anthrax-filled mail was sent to many government agencies. Since 1935, the Supreme Court has been located in its own building, so the Chief Justice and the marshal of the court control security decisions. When the basement mail room received letters contaminated with anthrax, the building was closed for a week to deal with the pollution. However, the court’s debate schedule was not interrupted as the judges moved to the nearby court building used by the U.S. District of Columbia Circuit Court of Appeals.

During the COVID-19 pandemic, Chief Justice John Roberts decided to postpone the debate in March and April 2020 and then switch the debate to telephone debate in May to protect lawyers, court staff and judges Own health. This remote format will remain unchanged throughout the 2020-21 semester.Now, less than two months before the start of the 2021-22 semester, Roberts (together with the court’s New marshal, Gail Curley) Must decide whether to continue to argue remotely or return to a face-to-face meeting, which may reduce some capacity.

This year, on the first Monday in October, people may return to the courtroom, but as in 1918, people entering the courtroom may be limited to selected court staff and lawyers who conduct business in the courtroom. Perhaps the court will consider it wise to ban bystanders, or it may ban anyone who has not been vaccinated. But such policies-purely speculative at this point-can cause problems. What if the defense lawyer is not vaccinated? What about the press? If the public is barred from participating in debates, will the courts also try to bar reporters from participating? (Presumably in this case, the court will at least continue to provide the audio live broadcast that it starts when it shifts to remote debate.) Perhaps the court will switch to a news “pool” system that allows a limited number of reporters to watch each in-person argument. The history of the courts provides few precedents for how to answer these questions.

Whenever the court resumes face-to-face hearings, will the format of oral arguments change based on the experience of telephone arguments?Some court observers Say it shouldThey believe that every judge has the advantage of setting aside time for questions.other miss The traditional free questioning, and urge the judge to resume this practice after returning to the court. Since 1789, the format of oral debate has changed many times-the debate time was initially unlimited and regularly reduced, now in most cases 30 minutes per side. However, until the remote controversy in 2020 prompted a more orderly form, at least since the mid-1800s, an almost constant aspect is the openness and aggressiveness of questioning, and any justice can be intervened at any time. The Supreme Court is an institution closely integrated with tradition, and I don’t think it will significantly deviate from this approach when business returns to normal.