During the coronavirus pandemic, the highest court in the land has been holding oral arguments via telephone and live-streaming the proceedings. In the oral arguments in Barr v. American Association of Political Consultants, Chief Justice John G. Roberts Jr. began the proceedings by warning everyone to turn off their cellphones.
He neglected, however, to remind people to avoid using the restroom during the proceedings — or at least muting themselves before doing so. But perhaps he should have.
That’s because toward the end of the arguments, at about 59 minutes into the scheduled hour, it sounded as if a toilet was flushing.
The Supreme Court has resisted broadcasting oral arguments live in the past, either by audio or video. They have cited concerns about people grandstanding or the court becoming a circus.
The toilet-flushing incident seems like a silly example of a lapse in decorum, resulting in humorous tweets and gentle mockery.
But this lapse in decorum carries with it a more serious concern. There is a reason courts are often housed in imposing, even palatial, buildings, why the judges wear long black robes and hold gavels, and why the physical set up of the courtroom indicates the importance of the various parties. The architecture and trappings of a courtroom signal the seriousness of the business carried on inside it. The physical location helps represent that the court brings to bear the full weight, power and importance of the federal or state government and the rule of law.
The strength of our legal system is built on that sense of the gravitas of the proceedings.
Nowhere is that gravitas, that seriousness, more manifest than in the hallowed halls of the United States Supreme Court. Its weight is certainly not simply symbolic. The highest court in our land carries the full weight of our laws and legal traditions. Absent the trappings of the court, at home in their intimate, everyday surroundings, how can the justices hope to instill the proceedings with the same level of weightiness and gravitas?
These expectations of decorum may not seem critical, but arguments can be made that the strength of a country’s legal institutions relies on the degree to which the public trusts and respects those institutions. Without it, the nation runs the risk of courts becoming a laughingstock, a place of grandstanding and pageantry. A circus.
A closer to home case provides an even more apt example of what can happen when courts lose control over their own proceedings.
The high-stakes Zoom hearing for the case between Gov. John Bel Edwards and Attorney General Jeff Landry over the state’s Coronavirus restrictions resulted in members of the public crashing the hearing and wreaking havoc.
While up to 300 individuals were allowed to attend virtually, only attorneys were supposed to have the ability to speak. But soon unidentified individuals and members of the public repeatedly interrupted the proceedings to weigh in, going as far as claiming the judge presiding over the case had been “bought off” or was “very biased,” while dogs barked and other noises were heard in the background.
The resulting debacle exasperated the judge and derailed focus from the critical legal case at the center of the hearing. It also clearly reveals the stakes of Zoom hearings and depositions. Members of the public interrupting a hearing to opine that the presiding judge was bought off without censure would never happen in a physical courtroom. And that kind of incident, especially when it is broadcast for all to hear, is certainly damaging to the public’s perception of the trustworthiness of the judge and his decision in the case.
Allowing such things to happen, even inadvertently or erroneously, in Zoom proceedings threatens to undermine the integrity of the very institution itself.
This might seem like a fleeting problem in the scope of our long legal history, one that will be remedied after the end of the pandemic. But these changes made necessary by the pandemic have revealed that court proceedings can be done virtually, a shift that offers much needed increased flexibility and cost savings for already under-funded and short-staffed courts, making them very unlikely to go away when the pandemic ends.
But conducting legal proceedings remotely is not without its costs. The legal field is built on deep traditions meant to instill and enforce respect for the law, and the trust in the integrity and honor of the system is not ancillary to its functioning but essential. The judge, the witnesses, the jury, the attorneys — they all must play their role with the utmost honor and respect for the legal process for the system to function effectively.
Without the decorum that traditionally accompanies court proceedings, the law ceases to be an institution and instead becomes a voice over the phone, a window in your computer, a toilet flushing in the middle of oral arguments.
The legal profession is at a precipice. Economic forces threaten to undermine the long-standing traditions of the profession by sacrificing decorum for convenience, dignity for reduced costs, and gravitas for expedience.
It is our jobs as representatives of the legal profession to push back against the lowering of expectations of decorum in the court system and to advocate for a return to physical court proceedings in the future. Our legal system depends upon it.