Why We Can’t Have Nice Normal Things Like In-Person Appellate Oral Arguments

By Michael Wein[*]

[Editor’s update: The Court of Appeals September schedule now shows that it will be holding September arguments by videoconferencing.]

As a previous Post accurately stated on the date of June 9, 2021, “In-Person Appellate Oral Arguments Ended Suddenly with A Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall,” things were looking very positive for regular appellate oral arguments in all Maryland-related State and Federal oral arguments by September or October of 2021 when the respective new Terms began. The Maryland Court of Special Appeals, Maryland Court of Appeals, and Fourth Circuit Court of Appeals had already taken steps towards in-person resumption of oral arguments. The United States Supreme Court had not committed yet, though this was unsurprising as their last oral arguments were in April 2021, with oral arguments beginning again in October 2021.

So for those who have been avoiding the internet and news for the last two months, this situation has become more complex. Most everyone in the United States since July, including judges and members of the Maryland Bar, have had an opportunity to become fully vaccinated. This at the very least, suggests that the virus, though contagious, will not lead to any worries about death or hospitalization when nearly the entirety of those who argue appeals, are done by attorneys.

However, the Delta Variant has somewhat altered things, and it is unclear what if any long-term effect this will have. As an update:

1. Last week, the Maryland Court of Special Appeals, after restarting in person oral arguments in July, announced that “[t]he Court will hold its September 2021 oral arguments remotely on Zoom for Government.”
2. Last week, the Fourth Circuit, after scheduling a single en banc oral argument in person on July 16, 2021 which apparently permitted the attorneys and audience to attend without masks, if they were fully vaccinated, announced that “[t]he court will not hold in-person oral arguments during its September 17-24, 2021, argument session. Oral argument will be held remotely using Zoom.gov.”
3. The United States Supreme Court, has not provided any public update since April 2021, though presumably will do so at their website on COVID-19 announcements.
4. There have not been any announcements yet, from the Maryland Court of Appeals, presently scheduled for the first argument of the Term on September 9, 2021.

Not all jurisdictions have fallen back (thus far just for September 2021), to remote oral arguments. For example, the federal Seventh Circuit Court of Appeals, based in Chicago, appears more than ready to resume in person oral arguments on October 4, 2021. Just last week, by Chief Judge Diane Sykes, the Court issued a number of Orders on August 13, 2021, related to: (1) ensuring for appellate attorney practitioners, they can attend arguments if properly certified they are fully vaccinated, (2) maintaining social distancing principles (which oral arguments lend themselves naturally to achieve) and (3) although the presumption will remain for in person oral arguments for attorneys fully vaccinated, allowing for the option of remote oral arguments for those parties and attorneys who would prefer that route.

Thus, though this may become known soon, it remains to be seen when the Maryland Court of Appeals reconvenes in September, if the typically two, perhaps up to four, appellate attorney advocates necessary to proper and efficient oral arguments for any given case, will be allowed to do so in person. Presumably all those involved have been fully vaccinated (which can be “Certified” like the Seventh Circuit requires), there is significant spacing for “social distancing,” and unlike the United States Supreme Court, the Maryland public is therefore allowed to follow the oral arguments directly, through the Maryland Court of Appeals’ webcasts.

[*] With apologies to Taylor Swift’s song, “This is Why We Can’t Have Nice Things.”