The Supreme Court’s teleconference arguments this week have offered a window on the justices to a broad audience, as Americans for the first time can follow along live with the court’s proceedings.
Yet, the most significant change is not so much in who is listening but how the arguments are unfolding. From disputes over trademarks to religion and robocalls, the new sessions have altered the nature of the court’s usual freewheeling but substantive give-and-take. And that could affect the outcome of cases.
Under the new system, each justice, going in order of seniority, gets a few minutes to quiz each side. There are no interruptions by other justices or cross-talk. Chief Justice John Roberts has generally enforced time limits, cutting off conversation mid-stream.
Traditionally, oral arguments give lawyers a chance to field questions, but they also provide an early opportunity for the justices to assert their own positions and try to persuade colleagues. This is where they often show their hand. Rather than the usual robust questioning, the nine are asking limited questions with no exchanges among them.
Here’s how the new rules are playing out:
Impossible to build momentum
The format ensures that lawyers, and the public listening in, know who is speaking (as announced by Roberts) but offers limited opportunity for particular points to be hashed out.
When the nine are in the courtroom, justices often swiftly counter assertions by a fellow justice and turn the argument around, to the advantage of one side over another and their own interest.
Justice Elena Kagan on Wednesday tried to pin down a lawyer challenging an Affordable Care Act policy that requires employers to provide contraceptive insurance coverage. But her line of inquiry related to the breadth of his objections, tracing to religious grounds, was halted mid-response because of the clock. Roberts turned to Justice Neil Gorsuch, a conservative often on the other side of liberal Kagan’s position, who was next in line.
Can’t read faces or follow up
Lawyers have fretted about the inability to see the justices’ faces and read their demeanor. That’s the same for journalists and others listening in. No longer may clues be gleaned from an expression of doubt as a justice leans forward from the bench. It is hard to know whether the justices have been satisfied by a lawyer’s response or whether they might be budging in ideologically charged cases that typically split the five conservatives and four liberals.
The phone format won’t solve the uncertainty over facial expressions, but a second round of questions could reveal whether an argument had been effective or was still hitting headwinds. It would also allow a lawyer to build on broader themes.
The downside: permitting a second round could double the time for the sessions, designed to be one-hour affairs.
More power for Chief Justice Roberts
In the center chair of the bench, Roberts has long struggled to bring more order to courtroom sessions marked by rapid-fire, non-stop interruptions. They can be chaotic, to be sure, but they are substantive and often reveal to regular observers which way the majority is headed on a case.
While Roberts likely would not prefer the telephone arrangement long-term, it has given him new control of who asks a question and when his or her time is up.
“Thank you, counsel,” Roberts repeatedly interjected this week as lawyers were still answering a justice’s question that ran over time.
Clarence Thomas jumps in
Justice Clarence Thomas, who has gone years without asking questions, suddenly is part of the Q-and-A. And because of his seniority, the 1991 appointee enters right after Roberts.
Thomas has offered various reasons for declining to speak at oral arguments over the years, including that he believes his colleagues interrupt the lawyer at the lectern, and each other, too much.
Clearly, he favors a system that allows each to be called on in turn. His baritone-voice questions have ranged this week from basic queries regarding how a case wended its way through lower courts, to those revealing the mindset of the justice who, even when unheard on the bench, has amassed the most conservative record of the nine.
Few hang-ups on the phone
The justices, a majority 65 or older, had little trouble with the technology. They were (usually) ready for their turn in the line-up and could be heard clearly. Justice Sonia Sotomayor and Stephen Breyer had a bit of trouble un-muting, and there was the already notorious sound of a toilet flushing on Wednesday. But mishaps were few, and Justice Ruth Bader Ginsburg was even able to participate from a hospital room.
Some justices such as Kagan figured out early how to fire off a series of short questions and interrupt lawyers to keep them on point; others such as Stephen Breyer hewed to their usual protracted wind-ups.
Capping off one such series, Breyer said, “Now, that’s a lot.” Lawyer Lisa Blatt responded gamely, “It’s not really a lot,” before proceeding with her answers. That was it for Breyer on that round.