As with other institutions of government, COVID 19 has caused a degree of chaos in the court system. The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.
The Supreme Court, like every other judicial institution, has had to find ways to cope. Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology. It was the last federal court to accept electronic filing. As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.
As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court. That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari). The Supreme Court then decides if it wants to hear the case. So most of the decisions of the Supreme Court are decisions to not take a case. There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court. One category is frequently referred to as “grant, vacate, and remand.” Those cases typically involve an issue that the Supreme Court decided while the application for review is pending. In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue. The other is summary reversal. These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court. But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives).
If the Supreme Court decides that they want to fully hear a case, the parties are given the opportunity to file more extensive written arguments (called briefs) followed by oral argument. Each year, there are seven argument sessions (two-week periods in which the Supreme Court hears oral arguments in approximately twelve cases — rarely more but sometimes less especially when one of the argument days would be a holiday). After each week’s argument, the Supreme Court holds a conference in which the justices meet to tentatively decide the cases argued that week and to decide which cases to accept for argument. After the conference, each argued case is assigned to a justice to draft an opinion.
By the time that COVID-19 struck, the Supreme Court had already held five of its seven argument sessions. But, it quickly became clear that future in-person arguments were not possible for either the March or April argument sessions. For the first-time since the 1918 “Spanish” Flu, the Supreme Court has had to shut down and cancel its public sessions. A century ago, the need to shut down for a month was a significant problem. But, it is a manageable problem today.
First, from all indications, the Supreme Court is holding its weekly conference of the justices by teleconference. And it’s possible for the justices to send draft opinions to each other (and back and forth with their clerks) over the Supreme Court’s computer network. As such, the Supreme Court has continued to decide which cases to accept and have issued eight opinions in argued cases.
The bigger issue involves oral arguments. There were 19 arguments scheduled for March and April. As of now, the Supreme Court has scheduled nine cases for argument by telephone conference. The Supreme Court — in a first for the Supreme Court — will livestream the audio from this argument to a media pool (which will almost certainly livestream the audio for the public). It is unclear what the court intends to do with the remaining ten cases. (The options include deciding these cases on the briefs, postponing the arguments until the fall, or scheduling a second round of teleconferenced arguments.) It is also unclear what this rescheduling means for when opinions will be issued. Typically, everything is wrapped up before July 4. But that is normally over two months after the last oral argument. Whether the Supreme Court can wrap up nine opinions is six weeks instead of ten weeks remains to be seen.
We are still waiting for several major decisions in cases that have already been argued. Still pending from the October argument are the two cases on whether Title VII (barring discrimination in employees) covers discrimination based on sexual orientation or transgender status. From the November argument session, you still have a case out of Hawaii on a key environmental issue and the DACA case. From the December argument session, you still have the Second Amendment case out of New York City and the Affordable Care Act case on payments to insures. From January, few of the cases have been decided, and the remaining cases include the Bridgegate case and the Montana case on whether stringent state establishment clauses violate the Free Exercise Clause of the U.S. Constitution. As of this point, no opinions have yet been issued from the February arguments which include the Louisiana abortion case and the challenge to the structure of the Consumer Finance Protection Bureau.
The special teleconference argument session includes several key cases. The cases include a Pennsylvania case involving the current regulations governing religious employers who object to providing contraceptive coverage under Affordable Care Act, a case on the “minister” exemption to Title VII for religious employers, a New York case on the ability of a state grand jury to issue a subpoena to a private entity for documents related to the president’s outside businesses, two joined cases on the ability of Congress to issue a subpoena to a private entity for documents related to the president’s outside businesses, and two cases on state laws punishing faithless electors.
Of course, every case is important to the parties to that case, to the industries impacted by the court’s interpretation of relevant laws, and the attorneys who practice in the relevant field of law. But, to this point of the term, the Supreme Court — with the exception of its interference with the Wisconsin primary — has not yet decided any of the cases that are likely to be noticed by the general public and voters. The decisions in these cases will undoubtedly play a key role in how voters perceive the Supreme Court and whether the Supreme Court will become an issue for progressive voters. (In the past, the Supreme Court has been a key issue for conservatives which helped Trump eke out a win by preventing the defection of voters who had serious concerns about Trump as President but wanted to keep a conservative majority on the Supreme Court.)
