Criminal courts can’t pause

It’s good news that the Supreme Court has suspended oral arguments indefinitely. If nothing else, it helps keep Justice Ruth Bader Ginsburg safe. Spry but still a cancer survivor, she celebrated her 87th birthday on Sunday. I would say it’s practically a national security imperative to keep the nation’s unofficial favorite Jewish grandmother away from anyone who might give her the coronavirus.

Apart from the health of the other justices, the court personnel and the lawyers, the suspension of Supreme Court arguments also carries an important lesson for the rest of the justice system: It must respond creatively to the pandemic by maintaining core operations while limiting those aspects of its usual functioning that might endanger public health.

At the Supreme Court, it’s relatively easy to eliminate situations that might lead to infection. That’s because the justices in general have relatively little public interaction with the parties who appear before them.

There is no formal requirement that the justices even hear oral arguments before deciding cases. The court has the power to decide cases on the basis of written briefs. In fact, it does so with some frequency, such as when the justices “summarily” reverse lower court decisions because they deem those decisions inconsistent with clear precedent.

The justices could also choose to hold oral arguments remotely over teleconference.
Similarly, other appellate courts across the country, state and federal, don’t have too much physical contact with litigants. They too can solve the contact problem creatively.

Where things get harder is in the context of trial courts. Most civil litigation can be postponed. Criminal law is something else again.

Consider the situation of people who are being held in jail awaiting trial. If the pandemic lasts a long time, delays resulting from it could extend defendants’ time in jail despite the fact that they are innocent until proven guilty.

Or consider the situation of people who have just been arrested and must be arraigned in court and charged before it can be determined whether they are entitled to bail.

The right to a speedy court appearance lies very close to the heart of the rule of law. When Congress suspends the writ of habeas corpus in times of emergency, the thing it is suspending is precisely a prisoner’s right to appear in court and assert that the detention is unlawful.

The Constitution says that habeas may not be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it.” There’s no mention of a public health hazard — a situation that was certainly imaginable to the framers of the Constitution, who themselves encountered yellow fever and smallpox epidemics.
Congress hasn’t suspended habeas. It follows that judicial hearings connected to detention need to keep happening, even in a pandemic.

Would videoconferencing satisfy the constitutional standard for judicial review of the legality of detaining new arrestees?

On the one hand, the framers could have taken the view that written submissions by prisoners were sufficient — and they did not. The Latin words “habeas corpus” literally mean “have the body.” In other words, the writ commands the jailer to produce the physical person of the detainee for judicial review. Although the writ of habeas corpus has evolved such that not every habeas petitioner appears in court, it would seem that the traditional requirement that an arrestee be physically present for arraignment has at least quasi-constitutional roots. Plus, a prisoner who is directly in front of a judge can’t be silenced unless the judge demands it; that might not be true of a prisoner appearing on videoconference.

On the other hand, a high-quality videoconferencing system could presumably be operated in such a way as to enable judges to assure themselves that prisoners are able to speak freely. Functionally, it might seem absurdly dangerous and old-fashioned to insist on in-person contact in the middle of a pandemic.

The practical reality is that arrests are going to continue even in a world where most people are sheltering in place.

So courts are probably going to have to address the videoconferencing question.
In doing so, they should weigh the power of traditional practices of judicial review of detention very heavily. We need to be safe and healthy. But we also need to be free — and arraignment in person, however technical it may seem, is a cornerstone of our freedom.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.