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Reuters
Clarence Thomas is a curious cat.
OYEZ! OYEZ! OYEZ!

Remote arguments are forcing US Supreme Court justices to wait their turn

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

The pandemic has upheaved the staid US Supreme Court.

This week, for the first time ever, justices are holding oral arguments over the phone and—in another historic first—these calls are being livestreamed. Listeners aren’t exactly getting a feel for the traditional real deal but are experiencing something unique, a jurisprudential revolution.

The new setup has led to surprising developments.

Most notably, the ever reticent Clarence Thomas has shocked all with his questioning. It’s not the content of his queries that’s weird but the fact that they are even happening. Thomas—on the bench at least—is a man of very few words. 

But it turns out that his silence was less indicative of disinterest in probing than an expression of appreciation for order in the court.   

Hot bench

Normally, oral argument is a semi-controlled free-for-all. Hearings on each case last one hour usually and time is split evenly between the parties, meaning everyone has 30 minutes, or 20 sometimes, depending. Attorneys make two-minute opening statements—a rule instituted last year to ensure at least 120 seconds without interruption—then the justices jump in.

So eager are the jurists to query that they may interrupt counsel in the middle of making a point and even cut each other off on occasion. The chief justice, John Roberts, once complained, “It is too much.”

The high court is a “hot bench,” which is to say the justices talk an awful lot. Legal scholars say that can be problematic. A 2019 paper in the Boston College Law Review by Terry Skolnik, an assistant professor of law at the University of Ottawa in Canada, explains:

Supreme Court Justices now speak more while the parties speak less, they interrupt both their colleagues and the parties (especially women) more frequently than in the past, and some of their questions advocate for positions rather than seek information. A hot bench raises crucial concerns about the nature of oral argument and appellate judges’ role in a constitutional democracy.

Certainly, the justices’ vociferousness has been a source of irritation for Thomas, who is so disinclined to talk that when he does speak it’s headline news. Last year, at an event at the Supreme Court Historical Society, asked whether his colleagues should be querying more, Thomas objected humorously, pleading, “Oh God, no, don’t say that.”

This week, however, he has asked more questions in two days than he did between 2006 and 2016, when he asked none. Perhaps that’s because the new remote phone hearings proceed in an extremely orderly fashion.

Oyez! Oyez! Oyez!

After the marshal signals the hearing’s start with the traditional call of “Oyez! Oyez! Oyez!” Roberts states the case name and number and the petitioner begins their opening statement. Now, however, during telephonic arguments, the chief asks questions first, counsel responds, and then each justice takes turns querying in order of seniority.

Thomas follows Roberts and he hasn’t passed up the opportunity. It’s hard to say if Thomas is pleased because we don’t often hear from him. But it seems there’s a hint of delight in his deep baritone, as if he’s tickled by the predictability of the telephonic proceedings and the chance to upend expectations. The cat has not got his tongue after all. He doesn’t just ask one question but offers follow-ups, too.

Ruth Bader Ginsburg, who is generally far less circumspect than Thomas, is next in line. She is followed by Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and finally Brett Kavanaugh. Roberts occasionally cuts counsel’s answer off to get to the next justice if the lawyer is on a follow-up query. Everyone, refreshingly, gets a say and then it’s the respondent’s turn.

The new format appears to have slightly changed not just form but also function, not just style but also substance. Normally, when one justices raises an issue, another might ask for counsel to expand on the answer. But because everyone’s jumping in and around, the attorneys and justices are all over the place and back again. It’s hectic. With the current setup, the jurists seem to do a better job of building on each others’ questions and minimizing grandstanding. It’s perhaps been something of a relief for practitioners, as they proceed through the questioning with some sense of what’s coming next rather than entertaining a volley of queries, never certain they will have a chance to fully answer.

Televising the revolution

Judicial transparency advocates have long tried to change the court’s ways, arguing that the justices would have more credibility and Americans would better understand government if oral arguments were visible. The response has always been “no.” Cameras are barred in the courtroom ostensibly because the electronic eye changes peoples’ behavior. Now that audio of the hearings is being livestreamed, the revolution will probably still not be televised. But it might be harder for the court to justify making the public wait days to hear recordings of the proceedings.

Given its fondness for tradition, it’s not certain the court’s pandemic-induced experiment will lead to a new normal. For the public, this month’s surprisingly enlightening lineup of phone arguments, which have so far gone delightfully smoothly, may well be the sole opportunity to hear live cases without being in DC and waiting in line for limited seating. Likewise, the newly effusive Thomas is probably a limited feature. Catch them while you can.

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