March 19, 2020
As the nation works steadily to get ahead of COVID-19 by postponing or canceling large gatherings and practicing social distancing, the U.S. Supreme Court is doing its part by closing to visitors and postponing the 11 oral arguments scheduled for March. Six of the nine justices are in the more vulnerable 60+ demographic.
This is significant because the court rarely cancels or puts off arguments. It did so in 1918 because of the flu epidemic and in 1793 and 1798 because of yellow fever concerns. But the rare occurrence of a delay in oral arguments gives us the chance to consider what the Supreme Court actually does, and why it is important to our basic freedoms and liberties.
The first thing to recognize is that this delay is unlikely to create a major concern for the court’s work. While oral arguments are the most visible of the court’s activities, the most impactful is the drafting of opinions deciding the cases before the court.
The U.S. courts website has a good description of the top court’s process for deciding a case.
The Supreme Court gets thousands of petitions each year asking it to hear a case in which one of the parties to a case decided by a lower court is unsatisfied with the result. The court takes a very small percentage of these, based on its rule that four justices have to vote to consider the case.
Once a petition for review is granted, the attorneys for both sides (and many times other groups or individuals) submit extensive written arguments to the court (ironically called “briefs”). Once all of these written submissions have been received, the court schedules an argument, but the justices already have a good idea of the evidence, issues and arguments they will need to weigh. The argument allows them to ask the attorneys about issues that are unsettled or to gauge reaction to potential outcomes. While these arguments are important, it seems likely that the written submissions and the justices’ own research is more significant.
After the argument, the justices have a conference to vote on the outcome of a decision. Based on that vote, specific judges are assigned to write opinions offering the evidence and logic justifying their conclusion on the cases. The writing of opinions and circulating those opinions to the other justices for their input and to firm up a consensus is the most important work that the court does related to the cases it takes.
So, the postponement of oral arguments may slow up some cases, but the justices still have plenty to do in the absence of these arguments, and there is no reason to believe that this appropriate concession to public health will create long-term problems.
Moreover, the delay gives us the chance to reflect on the important work of the American judiciary that is being delayed, and count our blessings that we live in a system where evidence and reason are the foundation of judicial decisions – whether you agree with them or not – rather than simply the fact of who holds political power when a decision is announced.
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