The Zoomification of the Supreme Court and the Rest of "us"

All of us are now utilizing “zoom” and similar platforms for professional and personal meetings. Recent articles describe the additional challenges posed by virtual meeting attendance.

Personally, I experience some degree of anxiety in these gatherings. Like the law, "venue” is important: does my square include evidence of clutter, poor taste or bad lighting? Do I have the necessary tools to participate? Will I find my laptop and the invitational email in time to join the meeting—- or will I make a late and conspicuous entrance? Do I have anything to contribute to the conversation? Will I self-consciously focus on my own image—- When WILL I be able to get a haircut? Should I pretend to be wear something “professional” when I am in my kitchen? Can I place my apple powerbook on a stack of magazines for an improved angle?—-rather than on the discussion? How do I smoothly “lean into” the discussion when there is a slight delay or my speaking voice sounds different in the conference? What to do if my dog/legal assistant barks at the Fed Ex truck or, as happened recently before our nation’s highest court, there is the distinctive sound of a toilet flush.

The self-consciousness of “zoom life” crept into recent hearings before the Supreme Court of the United States. Silent for years at a time, Justice Clarence Thomas zoomed a questions to attorneys in cases that present highly-publicized issues. Coincidence? Probably not. Thankfully, even hospitalization and unfamiliar technology did not interfere with the participation of Justice Ruth Bader Ginsburg. Her agile mind and inclination to reach to the core of a legal argument made its way through the zoom platform.

For the time being, virtual courtrooms will be the norm. The virtuality has a number of benefits: no need to worry about expensive parking near a downtown city courthouse; no need to schlep all the papers that might be needed; no need to worry that you will lose your keys somewhere during the security screening. The ability to participate in a courtroom proceeding—- especially if it is a matter being held before a judge only and not a judge and a jury—-can make the work day more productive and flexible. Social distancing is not an issue.

The status quo of virtual courtrooms is not without potential problems. Most of us are our own “IT Department” and not particularly adept, at that. Even if we know how to navigate zoom or its counterparts, there is often another participant who can’t find the “unmute” button or whose voice “echoes” incessantly. How can the judicial system make sure that the courts are as “open to the public” as they should be?

Stay tuned as the legal Rules of Procedure adapt to the current challenges of public health, access to justice and practicality.