April 19, 2021 Feature

Sua Sponte: A Judge Comments

A judge argues that by embracing innovation and refiguring processes that were once viewed as sacrosanct, we embrace the opportunity to create a system that is more accessible and transparent

Hon. Bridget McCormack

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This past term, the U.S. Supreme Court conducted its first-ever remote oral argument. Audio of the argument was also broadcast in real time, something the Court had never done. The Court usually releases recordings publicly at the end of each argument week.

While the pandemic-induced broadcast was well received, it also drew attention to the Court’s long-standing policy of prohibiting cameras in the courtroom—a policy that the Court continued to follow, in spirit at least, with its telephone-only argument. Maybe live audio broadcasts will continue once the Court resumes in-person arguments, but for now it seems unlikely that the Court will revise its policy against cameras.

That is too bad. Public trust is the currency of government, and the judiciary is no exception. Access to judicial proceedings helps maintain that trust. Allowing the public to observe how courts operate both fosters a sense of accountability in our judicial system and helps demystify processes that may seem impenetrable or arcane to non-attorneys.

The Supreme Court has even recognized a right of public access to court proceedings, albeit a limited right. As Chief Justice Burger wrote in Richmond Newspapers, Inc. v. Virginia, “[t]he right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.”

But, of course, the number of people who can attend oral arguments before the Court is very small. Typically, only 50 seats are reserved for the general public.

Supporters of the Court’s no-cameras policy have long argued that the presence of cameras would change the behavior of justices and advocates, and not for the better. That has not been our experience in Michigan, where since 1989 appellate courts have operated under rules that presumptively favor the allowance of film or electronic media coverage of proceedings. Even more recently, our state supreme court has broadcast live video of oral arguments and other public hearings. And we are not unique. Even before the COVID-19 pandemic, a majority of state supreme courts successfully used video livestreaming to make their proceedings more accessible and transparent.

Currently, court systems around the country are going through rapid, pandemic-induced changes. At the appellate level, the transition to remote proceedings has been swift and relatively painless. The challenges have been far greater for our trial courts. Courthouses are high-density places, often located in buildings where social-distancing measures are difficult, if not impossible, to maintain. To conduct operations safely, especially jury trials, many courts have refigured their spaces, some placing jurors in the gallery section of the courtroom.

Safely maintaining public access during these times requires allowing cameras in our courtrooms. In Michigan, we have facilitated such access by equipping every courtroom in our state with a videoconferencing system. Court proceedings are broadcast live on YouTube.

To make access even easier, we have created an online directory where members of the public can quickly and easily find each of these “virtual courtrooms.” While the proceedings may not command the public’s attention like those of our nation’s highest court, anyone with an internet connection can watch, in real time, any court in the state of Michigan.

We are discovering that virtual courtrooms not only protect public health during a pandemic but also help remove traditional barriers to access. They allow litigants to participate without requiring them to find transportation, arrange for child care, or take a day off from work for a hearing that might require only a few minutes of their time. For attorneys, the ability to “appear” in any court in our state without leaving their homes or offices can be a tremendous time-saver.

It is difficult to look beyond the current moment, but as courts formulate plans for an eventual return to normalcy, we cannot limit ourselves to simply “reopening” our old ways of doing business. Virtual courtrooms are not a panacea, and figuring out how they best interact with our understanding of judicial processes and constitutional rights will undoubtedly be a learning process. But these are changes and lessons that, while accelerated by the pandemic, were likely inevitable.

By embracing innovation and refiguring processes that were once viewed as sacrosanct, we embrace the opportunity to create a system that is more accessible and transparent and that ultimately does a better job of delivering justice to the public.

Hon. Bridget McCormack

The author is chief justice of the Michigan Supreme Court, and an associate editor of Litigation.