On May 4, the U.S. Supreme Court heard oral arguments by phone — and let the world listen in via live stream (and just two days later, this innovation rang in the court’s first audible toilet flush). What’s more, the court is moving to have advocates file motions and briefs online. Prompted by the coronavirus pandemic, these firsts have been startling from an institution that has never allowed its arguments to be broadcast and has long resisted any change.
But the state courts got there first, responding quickly to the coronavirus threat by offering innovative and remote access to justice. Almost one month before the Supreme Court’s audio broadcast, the North Dakota Supreme Court offered live broadcasts of oral arguments held over Zoom. In early April, the Texas Supreme Court followed suit. On the same day that the U.S. Supreme Court first announced it would live-stream its remote oral arguments, the Michigan Supreme Court held its first oral arguments remotely, broadcast live via YouTube.
Don’t be surprised. Our research finds that state judges often launch innovations. That’s because they don’t have life tenure, making them quicker to respond to public demands.
State courts have the motivation to innovate. The U.S. Supreme Court does not.
As the novel coronavirus began to spread in the United States, many state chief justices and their courts issued numerous orders canceling jury trials, postponing deadlines for fees and filings, and delivering numerous guidelines for ensuring that the judiciary and criminal justice systems could continue to function. For instance, as of this writing, the Texas Supreme Court has issued 14 such orders; the Michigan Supreme Court, 13; and the North Dakota Supreme Court, nine. Indeed, every state high court has issued numerous and often significant orders. For example, on March 20, Chief Justice Mike McGrath of the Montana Supreme Court asked his state’s lower-court judges to “review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses.”
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Why are state courts so innovative while the U.S. Supreme Court is so stodgy? The Constitution guarantees Supreme Court justices a job for life. But most state judges need either voters’ or state officials’ approval if they’re to stay in office. Our previous research has looked at what state supreme court judges post on Twitter and at how they write their legal opinions. There we’ve found that these judges work at projecting a positive image, not only to the state’s legal community but also to the broader public.
In other words, state judges pay attention to what political scientists call “retention audiences,” while Supreme Court justices don’t. “Retention audiences” means the group responsible for renewing someone’s term of office. For elected state supreme court judges, that’s the voters; for appointed judges, that’s the governor or legislature. These retention audiences connect judges with the public, either directly or indirectly, making the judiciary not only a legal institution but a representative one, as well.
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The U.S. Supreme Court’s chief justice is also the chief administrator of the federal courts. So far, Chief Justice John G. Roberts Jr. and the Judicial Conference of the United States have issued only two declarations. The first authorized remote proceedings; the second required courts to offer public access to those proceedings. But nearly all other policies are determined at the federal judiciary’s lower levels — and U.S. courts of appeals are taking very different approaches to the pandemic.
Only the 1st Circuit has made no changes regarding oral arguments. Every other circuit has made accommodations, but with significant variations. The 2nd, 6th, 7th, 8th and 11th circuits are all requiring telephonic hearings, like the U.S. Supreme Court, though the 6th does not have live audio, with recordings posted to their website within 24 hours. In the 3rd Circuit, in-person oral arguments continue, though parties may request a hearing by telephone. The remaining circuits have decided to move forward by giving the parties the choice of having their case decided by brief, postponing oral arguments or doing them remotely. In other words, the federal courts’ policies vary by region.
State high courts have responded more quickly, bringing each state’s courts into more uniformity. To be sure, the circuits are in very different regions, which could explain the federal courts’ decision to allow these decisions to be made locally. But every state (minus Nebraska) has taken a top-down leadership role, leading to uniformity in judicial practice across the state.
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When it comes to judicial leadership, incentives matter
Each Supreme Court justice has reached the highest judicial position in the United States. Since they are in no danger of losing it, justices have no need to cater to specific audiences, unless they personally want some group’s approval. But unlike Roberts, state supreme court chief justices do risk losing their jobs — and that’s the primary motivating factor in their behavior.
So why are the U.S. courts of appeals’ chief judges also responding to the crisis even though they, too, have life tenure? Because these judges do also keep an eye on an audience — particularly if they hope for a promotion to the U.S. Supreme Court.
As a result, while the U.S. Supreme Court’s audio live stream may well stop when the pandemic’s threat has passed, state courts’ changes are likely to outlive the crisis, continuing to reduce costs, increase transparency and improve access to the judicial system into the future.
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Todd A. Curry (@DrToddACurry) is an associate professor of political science at the University of Texas at El Paso and author most recently, with Michael K. Romano, of Creating the Law: State Supreme Court Opinions and The Effect of Audience (Routledge Press, 2019).
Michael P. Fix (@mpfix1) is an associate professor of political science at Georgia State University whose forthcoming book with Benjamin Kassow is U.S. Supreme Court Doctrine in the State High Courts (Cambridge University Press).
Michael K. Romano (@Romano_PoliSci) is an associate professor of political science at Shenandoah University and author most recently, with Todd A. Curry, of Creating the Law: State Supreme Court Opinions and The Effect of Audience (Routledge, 2019).
Michael F. Salamone (@enomalas) is an associate professor of political science at Washington State University and author most recently of Perceptions of a Polarized Court: How Division Among Justices Shapes the Supreme Court’s Public Image (Temple University Press, 2018).