Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.
In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.
Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?
Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.
To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.
The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.
But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:
“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)
Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.
Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.
This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”
Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.
Steve Leben and Kevin Burke
[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]
Procedural Fairness For Courts and Judges 
Thank you Kevin and Steve for sharing your insights and creating the procedural fairness blog. I attended the oral arguments today in the US Supreme Court. Your point about judicial humility resonates with me. As I reflect on what I observed in the packed courtroom, I was struck by how often several justices, veterans as well as newcomers, seemed to be more interested in their own statements and questions than in the answers or the inquiries of their colleagues. I estimate more than half the time during a justice’s questioning of an attorney, another justice would interrupt the questioning colleague with his or her own question or, more often, interrogate the advocate before he could respond to the prior question. Is this a good manner to obtain insights from counsel? To educate the viewing (or listening) public about a high court seeks to obtain the just result? [All three oral advocates were quite facile, concise, articulate, and not grandstanders.] I wonder if the justices ever attempt to listen to themselves with an attempt to stand in the shoes of fellow Americans. Would they see there’s a need to demonstrate a more humble attitude in their searching for a fair and lawful outcome? This American thinks so.
Greg, thanks for submitting your thoughts about the healthcare-law oral argument. You had a vantage point for judging the procedural fairness of the oral argument that most of us can’t get — since there is no video. What one gets from the transcript or even from the audiotapes can’t fully recreate what someone could see from within the room.
Your point about the interruptions by justices when attorneys were answering the questions of other justices is a good one. One thing that I thought was well done, though, was the Chief Justice Roberts frequently followed up by asking counsel to go back to answering the question that had been interrupted; other justices sometimes did that too.
But I think you’re right that most of the justices can’t envision how all of this would look to a member of the public watching or listening to it. Your comments about how they might come across better to the public are well taken. Steve Leben