Today is Ruth Bader Ginsburg’s 87th birthday. On April 1, Justice Alito will turn 70 and be the fifth supreme court justice to have reached that age. The Supreme Court hasn’t been hearing cases for a couple of weeks, but will resume next Monday, March 23. If the Justices are exposed to coronavirus, a majority of the existing court would be at high risk. Worst case scenario, Donald Trump could nominate several justices before the election, and Mitch McConnell would rush them through.
Tom Goldstein at SCOTUSblog has a good write-up on different options that the court has on how it should handle currently scheduled arguments. Most importantly, the Court would need to seriously reduce the number of people involved. Usually, during arguments several groups are allowed in the courtroom:
That day, the courtroom would hold 12 different groups of people: (1) the nine justices; (2) administrative and courtroom staff; (3) law clerks; (4) police; (5) guests of the justices; (6) arguing counsel and co-counsel; (7) reporters; (8) lawyers being admitted to the Supreme Court bar; (9) members of the Supreme Court bar; (10) guests of the parties with reserved seats; (11) members of the public with reserved seats; (12) members of the public attending the full proceedings; and (13) members of the public briefly viewing the proceedings for a few minutes.
This large group of people would not allow for recommended social distancing. Goldstein suggests that the Court could remove perspective and current members of the bar (groups 8,9) and members of the public (groups 11-13) which would reduce the total number of people by about 80% and allow for the participants to follow recommended distancing. However, the Court has been hesitant to disallow the public to view proceedings in the past because they are a public institution, and do not wish to give any appearance otherwise.
The Supreme Court often stays open even while other institutions are closed. However, during the Spanish Flu the Court was located in the Capitol, and both congressional galleries were closed. The Court postponed oral arguments until they were reopened. April’s schedule is light and most arguments could be postponed until then, or even next term. The most time sensitive case ahead of them is about Trump’s tax returns.
I personally would rather postpone arguments on Trump’s taxed until after the election than even slightly risk the health of either Ginsburg or Breyer. I do not know how we could pressure the Court to postpone hearings until it is safe to resume, but would love to hear suggestions. This could be potentially one of the most important decisions that is made in the coming weeks.
Also, please read the entire article linked to above. It contains a lot of good information. I just wanted to get a discussion going on here about what can be done.
