Hearing of the Courts, Intellectual Property, and the Internet Subcommittee of the House Judiciary Committee - Opening Statement of Rep. Henry Johnson, Hearing on "Federal Courts During the Covid-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future"

Hearing

Welcome to the Subcommittee's hearing on "The Federal Courts During the Covid-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future." For more than 70 years, Congress has provided that "all courts of the United States shall be deemed" to be "always open." That congressional mandate--and the deeper principles it embodies--has been sorely tested by the pandemic sweeping across the country.

The idea of open justice is fundamental to any constitutional democracy. The concept encompasses a range of meanings, but today I want us to focus on three. First, open justice means that our courts must be open for business, able to not just receive complaints and motions but also to hear arguments, hold trials, and issue decisions without the undue delay that can rob any ruling of its value. Second, open justice means that our courts must be open to the public, because justice made in the dark isn't really justice at all. And third, open justice means that our courts must be safe and accessible to all.

Our judiciary is decentralized by design and inclined towards incrementalism, so it is to their credit that our federal courts moved relatively quickly to maintain their operations and protect health and safety in the face of the coronavirus. Judges and court administrators had to make tough decisions that probably saved lives--they closed courthouses, postponed trials, and held hearings by phone and video. One court even held the federal judiciary's first virtual bench trial. With their courtrooms closed, many judges opened their proceedings to the public through live video and audio. Even the Supreme Court, which has for decades been committed closing itself off from the public, allowed live audio broadcasts of its arguments.

But with four months of experience behind us and the reality that we are still in only in the first wave of the virus, it's become clear that the courts and Congress need to do much more if we want the courts to be truly open during this pandemic--and after. It's also clear that we can do more to insulate the judiciary against future emergencies, whether that's a second or third wave or a future pandemic.

There is an alarming backlog of motions and trials that, if not addressed, could effectively decide cases against parties who cannot afford to wait for a judgement. The judiciary's historical resistance to embracing available information technology options could force court personnel, litigants, and witnesses into unsafe courthouses to attend proceedings that could have been held remotely. The risk of infection could shut the public and the media out of live proceedings, and the lack of publicity about alternatives could shut them out of remote proceedings. The Supreme Court might return to its practice of forcing people to wait in long lines to cycle through a tiny, packed courtroom.

These threats to open justice will force the judiciary to make some uncomfortable choices. There is a powerful desire to get back to normal, but the courts will put people at risk if they simply try to revert to how they operated before the pandemic. Instead, the judiciary should meet this crisis by exploring how to make the courts more open, more effective, and safer than ever before, both during the pandemic and beyond. It can start by following the increasingly well-worn path marked by many innovative state and federal judges.

The coronavirus has forced us all to ask, "what kind of government are we?," "what kind of government should we be?," and, most importantly, "what kind of government will we be?" Our federal courts are no exception. I hope today's hearing will help us find answers that preserve open justice, promote public confidence in their courts, and protect the rule of law.

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