by Contributor

(Sep. 23, 2020) — Courts have faced challenges in operating during the pandemic, with the nation’s highest court, the Supreme Court, struggling to set an example.

Apart from disrupting every aspect of daily living in the United States, the COVID-19 pandemic has also shone the spotlight on institutions that were ill-prepared for public health crises.

The lack of preparation is especially evident in the American judiciary system. Courts have faced challenges with operating during the pandemic. Apart from conducting daily hearings that cannot be delayed, the courts must resolve legal disputes arising from conflicts and efforts in addressing public health emergencies.

The nation’s highest court, the Supreme Court, struggles with setting a good example during the pandemic. The higher court canceled arguments indefinitely without any advice or word on what would happen to postponed cases. When the Supreme Court resumed its operations, it wasn’t transparent with how it would enact its plans, providing little to no notice on upcoming decisions.

Since future pandemics are likely, the judicial system must not stay flat-footed. What are the highest court’s plans for possible disruptions? How can the Supreme Court’s response affect, say, the strategy of your personal injury lawyer or your settlement agreement with an ex-spouse? What does the judicial future look like?

The Supreme Court’s Initial COVID-19 Response: Lack of Clear Guidance?

As the 2019 novel coronavirus started to spread in the United States, the Supreme Court canceled hearings and arguments scheduled for March and April. This decision, while made in the interest of reducing the transmission of the disease, confused the public and parties involved with the postponed cases.

The highest national court provided little guidance for those who expected to attend court arguments in March and April. As a result, attorneys continued to prepare for arguments and filings, unaware of the delay in their cases or change in setting for their oral arguments.

Also, the Supreme Court continued to require hard-copy filings, ignoring the risk it poses to attorneys who had to print the documents physically. The sole COVID-19-related concession made by the court was to request that those filings be mailed instead of hand-delivered. Eventually, the nation’s highest court agreed that all common filings must be sent via e-mail.

On April 13, the Supreme Court resumed remote oral arguments for a few cases postponed during March and April. Also, the court allowed the public to listen to oral arguments remotely – a first for the Supreme Court. While this was a welcomed change, it doesn’t overshadow the court’s failure to guide all parties involved at the start of the pandemic.

Unprepared for Public Health Emergencies?

The Supreme Court’s response to the COVID-19 pandemic suggests that it did not have a public health crisis plan in place – even though multiple health experts recommended that the country should be prepared for this kind of event.

The US courts’ Administrative Office (AO) offers a variety of support services to federal courts, which include financial, technology, legislative, and program support services. The AO also issues general guidelines for continuity planning and emergency preparedness. Under the AO is the Judiciary Emergency Preparedness Office, which is responsible for developing continuity operation plans. In 2012, there were several emergency preparedness programs for the federal court, but none focused on a pandemic-specific plan.

How Can the Supreme Court Prepare for the Future and Stay Transparent?

Although the higher courts have successfully resolved a couple of arguments remotely during the pandemic, there is still room for improvement. A couple of steps are necessary to ensure future terms will not be disrupted.

First, the Supreme Court should implement (and make public) an emergency response plan to emergency health events such as COVID-19. Any plan should include procedures for announcing postponements, including setting a deadline for any rescheduled argument or decision dates. The court should also detail social distancing measures to be enforced within court premises.

In addition to implementing an emergency response plan, the Supreme Court should also clear up any changes regarding future term dates. The court’s term regularly runs from October to June. Due to the backlog of cases on the docket, however, the terms were extended into July. Unfortunately, the court gave little notice to the public, informing parties involved only a few days beforehand.

Second, the Supreme Court must ensure the public has immediate access to oral arguments. This development encourages regular access to the court remotely. Apart from providing live audio of arguments during COVID-19, the courts can still hold live sessions (provided that social distancing measures are already relaxed).

During a public health crisis, the judicial system should still be able to operate effectively. Currently, the Supreme Court weighs in on cases related to the legality of state and local public health orders, as well as election safety.

COVID-19 has highlighted the need for the higher courts to develop a detailed pandemic plan. It should also not back away from being more transparent with its measures.

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