In 2020, as Americans feared that any in-person meeting would spread the coronavirus, many federal courts began meeting online, live-streaming audio of oral arguments for the first time. Those included the Supreme Court, nine of the 13 federal appeals courts and more than a dozen district courts.
At least some in Congress took notice. Two House members sent the circuit courts letters asking whether they will continue live-streaming when the pandemic ends. In response, the Administrative Office of the U.S. Courts wrote that “all but one appellate court have indicated that they would consider continuing to live-stream oral arguments after the pandemic abates or have already decided to do so.”
That suggests that, for some federal appeals courts, live-streaming has brought benefits. One circuit’s judges, however, have embraced technological innovations for decades, including live-streaming and video-recording oral arguments: the U.S. Court of Appeals for the 9th Circuit. Its trajectory might offer lessons for other courts as they decide what to do this fall, potentially offering citizens insight into how these intermediate appellate courts — whose decisions are final in nearly all federal cases that are appealed — work.
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The 9th Circuit’s path to live-streaming video
In a recent news release, the 9th Circuit, which covers most of the western United States, explained its status as a technological innovator. It began offering previously recorded oral arguments via a YouTube channel beginning in 2010; live-streaming some important cases beginning in 2012; and live-streaming video of all normal oral arguments beginning in January 2015. As far back as 1991, the 9th Circuit allowed media outlets to request the ability to bring still or video cameras into the courtroom for civil cases.
Research finds that state courts learn from each others’ experiences with technological innovations. In the federal judiciary, willingness to cite opinions from other courts of appeals — which are not precedents that other appellate courts are bound to follow — suggests they also learn from each other.
In a forthcoming article, my co-author and I find that 9th Circuit appellate judges used to be selective about what public image they presented. On the courts of appeals, panels of three judges hear oral arguments presented by attorneys. From 1991 to 2005, when a media outlet requested the ability to cover a case with video cameras, judges were more likely to reject these requests when a panel’s members disagreed with one another on law and policy.
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The 9th Circuit is notable for its size and the high rate at which the Supreme Court overturns its rulings. Nevertheless, other courts that try out greater transparency may, like the 9th, be willing to take a deeper plunge over time.
Even before the pandemic, different courts of appeals have taken different paths. Three had already experimented with live-streaming audio: the 2nd, 4th and D.C. circuits. As the pandemic has waned, one court of appeals, the 11th, has already stopped live-streaming.
Several courts of appeals turned to YouTube during the pandemic. According to data compiled by Fix the Court, almost every court of appeals has hosted audio live streams on YouTube, and five — the 4th, 5th, 7th, 9th, and D.C. circuits — still keep recordings on YouTube for later viewing. This is a major change from only a few courts of appeals having YouTube pages in March 2020.
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Research shows benefits and risks of transparency
A basic argument in favor of transparency is that live-streaming oral arguments lets Americans better understand what happens in a courtroom. Live-streaming ought to increase the amount of information people have about courts. Citizens’ knowledge of facts about federal courts is low, although researchers disagree about the precise level. Even if citizens didn’t follow along with oral arguments themselves, journalists could on their behalf, offering better reporting on the legal content of cases. That would be especially useful to television journalists, who report less legal content than print reporters. Being able to use audio or video hosted online — and therefore letting the public hear judges or lawyers speaking, rather than journalists’ summaries of their discussions — could enable TV reporters to better inform their viewers.
Knowledgeable citizens are important for several reasons. More aware citizens should be more likely to notice if a court strays too far from public opinion. Federal judges don’t stand for reelection, but research shows that federal judges are responsive to pressure from Congress. Knowledgeable citizens can send a signal, through Congress, to a court that it is out of line.
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Research also shows that citizens’ knowledge of federal courts and their attitudes are related. High-profile cases, such as those involving Hillary Clinton and Michael Flynn, can attract tens of thousands of streamers. This audience hears the facts of these cases and, more broadly, learns about the role and function of the court of appeals. A study of 18 national courts showed that the more someone is aware of a court, the more legitimate she considers the court to be. Knowledge and legitimacy become linked because when people pay attention to courts, they also see or hear things that portray judges as different from politicians. When audio is live-streamed, this effect could occur when a listener hears judges repeatedly referred to as “your honor.”
Some argue that listening to or watching judges at work might hurt their reputation for being above politics. When citizens see courts as political, they begin to see them as less legitimate.
That may be why, in our research, we found that panels of 9th Circuit appellate judges are less likely to allow cameras in the courtroom when their views on law and policy are far apart. Judges may at first have feared that their differences would be interpreted as political — a fear that seems to have dissipated.
It’s too soon to tell for sure how appellate judges’ views on transparency have changed. Based on how several courts of appeals now embrace YouTube, it seems likely some will keep their current transparent practices even after the national emergency ends. For those who do continue, and perhaps even embrace new innovations like live-streaming video, the downstream benefits of live-streaming could be significant for people’s understanding of federal courts.
Christopher D. Kromphardt, PhD, (@cdkromp) is an education support services manager in the University of Iowa Public Policy Center, whose research focuses on judicial behavior, public opinion and blended learning.