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How The Supreme Court Schedule May Change Due To The Pandemic

ARI SHAPIRO, HOST:

Like so many other workplaces across the country, the U.S. Supreme Court is nearly empty. The justices, like the rest of us, are practicing social distancing. Still, they seem to be busy issuing opinions and orders. Justice Ruth Bader Ginsburg is even continuing her regular workouts. Joining us now is NPR legal affairs correspondent Nina Totenberg with an update on the Supreme Court.

Hi, Nina.

NINA TOTENBERG, BYLINE: Hi there, Ari.

SHAPIRO: So is Justice Ginsburg doing Zoom workouts like the rest of us or what?

(LAUGHTER)

TOTENBERG: Well, she says she's working out and doing planks and pushups to keep up her strength. I don't know if she's still going to the gym at the Supreme Court, which she was until a few days ago. Remember; she's 87 years old, had recent radiation treatments for her latest bout with cancer and, frankly, I can't figure out how she musters the strength. But my motto is, if she can do it, so can I.

SHAPIRO: Amen. Well, the last time the justices heard oral arguments in pending cases was early March. Since then, they've postponed late March and April sittings, and there were some important cases scheduled for those dates, right?

TOTENBERG: Yes. These were supposed to be the last oral arguments of the term. But in announcing the latest postponement, the court seemed to hint that it might not hear most arguments, choosing instead to put them over until next term, which begins in October. In a press release, the court said that the justices, quote, "would consider a range of scheduling options and other alternatives if arguments can't be held in the courtroom before the end of the court term," which is usually at the end of June.

SHAPIRO: What are the other options for hearing arguments?

TOTENBERG: Well, the court could hear a very - could hear very time-sensitive cases now and postpone the rest until next term. Among the very pressing cases are three involving subpoenas for President Trump's financial records, two involving congressional subpoenas and another one involving a New York grand jury subpoena for his financial records relating to alleged hush money payments to porn star Stormy Daniels and another woman during the 2016 campaign. Two other cases from Washington state and Colorado could have a direct effect on the upcoming 2020 presidential election. These cases provide a test of state laws that punish or remove Electoral College delegates who do not cast their ballots for the presidential candidate they were pledged to support. Some of the justices may prefer to defer the Trump cases on the theory that if Trump were to lose the election, the claims of presidential immunity would just go away. But a postponement like that would certainly draw a lot of criticism that the court is acting in a political way in aiding the president. And if the court does not decide the Trump cases this term, even if he is elected - reelected - the congressional subpoenas would expire by January when the new Congress takes office. And the grand jury subpoenas could expire, too. So in some sense, it's now or never.

SHAPIRO: So what do they do? I mean, like, what alternatives do they have for handling this?

TOTENBERG: Well, some advocates of TV coverage have been pushing to have the justices hear oral arguments via remote video, which some lower courts are doing with three-judge panels. But it would be a much more unwieldy thing to do that with nine justices, where court arguments are often something of a free-for-all. And the justices have consistently opposed any live broadcast of their proceedings. Doing it by telephone would be even harder. And having arguments in the courtroom looks to be quite a long way off. It's only a question - it's not only a question of public safety or the safety of the lawyers who'd have to travel to D.C. But there's the safety of the justices themselves. Six of them - evenly divided, I might note, between conservatives and liberals - six of them are 65 or older, putting them in the high-risk category. And the bench is designed so that they sit very close to each other, certainly not social distancing.

SHAPIRO: Yeah. So when do you think the court's going to make some decisions, just briefly?

TOTENBERG: Well, they could opt to hear some cases by remote video or they could opt to decide some cases on the basis of the briefs alone without oral argument. That would be a pretty radical departure, though, for - from custom for an institution that does just about everything based on tradition and precedent.

SHAPIRO: That is NPR legal affairs correspondent Nina Totenberg.

Thanks, Nina.

TOTENBERG: Thank you, Ari. Transcript provided by NPR, Copyright NPR.