Clarence Thomas, hobbits and the mute button: A historic two weeks at the virtual Supreme Court
Much was different at the Supreme Court on Tuesday as the justices prepared to hear hugely significant cases concerning separation of powers and presidential immunity centered on efforts to subpoena President Donald Trump's financial and tax records.
The courtroom, lined with its crimson curtains, was closed. The blindingly white marble plaza -- normally the backdrop to protesters on big opinion or argument days -- was empty despite the divisive topic in an election year. And there was no line snaking down the sidewalk, consisting of weary observers who had camped out for days hoping to get a coveted seat inside.
Instead, the justices and lawyers were on the phone.
At the same time, the global disaster that is Covid-19 has had another unexpected side effect on the Supreme Court: it has led to greater transparency. As a result of the pandemic, the court flung its doors open to the public -- virtually -- by releasing real time audio for the first time in history.
For two weeks, the American public, quarantined in their homes, was treated to a civic lesson of sorts, allowed to follow the logic of the least-seen branch of government.
And while Chief Justice John Roberts and others have long recoiled from any change in the format of oral arguments, those fears, except for one mysterious toilet flush, never came to fruition.
The great experiment, prompted by a pandemic, of allowing the public more access is now over. The question lingers: will the justices allow it to continue in the future?
A new format
Not only did the justices condone the release of the audio, they also changed the way they asked their questions. Instead of a free-for-all that can be spontaneous but chaotic, and often tests even the most nimble of advocates, the justices asked their questions in turn by order of seniority.
To be sure, it was more of a plodding experience at times. It lacked the usual rat-a-tat give and take of pre-Covid days. Under normal circumstances the justices talk over one another and interrupt the attorneys regularly.
But for the unaccustomed, it offered a better road map to explore the issues at hand. And it also allowed a justice to pursue an entire line of questioning without interruption from a colleague on the bench.
For lawyer and court watcher David Lat, the pandemic-inspired approach is superior to the justices' usual approach.
"They should have been doing this all along, and they should keep doing this if and when they return to argument in an actual courtroom," Lat said in an interview.
Lat believes the new format allows every justice to get in at least a few questions, and "doesn't give an advantage to the most aggressive and noisiest members of the Court."
But not everyone was such a fan.
Lyle Denniston, the dean of the Supreme Court press corps who is now mostly retired after 72 years in the news business, missed what he called in one tweet, "the rapturous joy of cross-talk".
In another tweet he noted that he'd heard many arguments over the years and he did not like the format. "This harms equal status of each Justice, gives the [Chief Justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, looks amateurish," he tweeted.
The Clarence Thomas factor
Perhaps the biggest surprise was Justice Clarence Thomas. He is a gregarious man in private with a deep baritone and a contagious laugh. Although he often gives talks around the country, and reads his opinions from the bench, he rarely asks questions, citing in part a dislike for the free-for-all format. Until now. The new format appealed to him and he was a vigorous questioner on the bench.
He was stern at times. When a lawyer for the House of Representatives suggested that a subpoena for Trump's financial records didn't trigger a separation of powers concern because it was sent to a third party accounting firm, Thomas was quick to react.
"I think we all know it's about the President," he said.
But he was humorous too. In the faithless elector case he worried that a rogue elector -- without fear of penalty -- could vote for anyone, including a hobbit.
"The elector," Thomas said, "who had promised to vote for the winning candidate, could suddenly say, you know, I'm going to vote for Frodo Baggins, and that's -- I really like Frodo Baggins."
The Lord of the Rings reference hit the twittersphere fast.
For some, Thomas is an enigma remembered most for his controversial confirmation hearings more than a quarter-century ago. Now, he is the longest-serving justice on the bench, and many of his former clerks have populated the top levels of the Trump administration. The last two weeks provided a glimpse into his jurisprudence for those seeking hints on how he viewed the cases, and are impatient for the final opinion.
Justices adapt, find workarounds
Justice Elena Kagan, who often writes and speaks in language aimed at a non-lawyer, didn't hold back under the new format. In one case concerning whether lay teachers could sue the religious schools that had fired them for employment discrimination, she asked a series of rapid-fire hypothetical questions. She managed to get a lawyer for the school to make certain concessions.
And she spoke plainly to a personal lawyer for Trump who was asking the court to step in and block House subpoenas.
"It seems to me you're asking us to do is to put a kind of 10-ton weight on the scales between the President and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the President is concerned, " Kagan said.
As for the justices, once they got the hang of it, and when they remembered to unmute their lines, they showed no hesitation. Justice Ruth Bader Ginsburg, briefly hospitalized last week for a gallbladder condition, phoned in from her hospital room in Baltimore. She excoriated a government lawyer for a case concerning the Trump administration's attempt to weaken the Affordable Care Act's contraceptive mandate.
"The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage," she said from her hospital room.
Justice Sonia Sotomayor, a serial interrupter, had early troubles forgetting to unmute her line. After the first time she expressed her apologies. When it happened again she said, "I am sorry, Chief, did it again."
During one oral argument featuring four lawyers the chief justice -- keeping time -- was unusually strict and cut off follow up questions. But Sotomayor got savvy and asked two part questions.
By Wednesday, the last oral argument day of the term, the process seemed to work especially well for two arguments concerning so called "faithless electors."
At issue in the cases was whether states could punish an elector who failed to cast a vote for the state's popular vote winner in the Electoral College. For more than two hours the court methodically explored the issues that they will decide in the midst of an election year in a volatile political atmosphere. By the end, the justices touched upon constitutional principles, the intent of the founders, and what Justice Brett Kavanaugh called the "avoid-chaos" principle of judging.
The session had the gloss of an educational seminar and seemed to satisfy all parties.
Although on the first day of the teleconference last week there were glitches, and Chief Justice John Roberts voice seemed oddly stilted, but the justices got the hang of things.
Some justices missed their turn, Justice Stephen Breyer's cell phone went off and Sotomayor forgot to unmute, but except for one notable exception, the technology of the new system worked fine.
The big glitch happened when Roman Martinez, an experienced advocate, was midway through his argument when there was the unmistakable sound of a toilet flush.
The offending party has not come forward, and may never do so, but court watchers hoped the inelegant mishap would not deter the justices from allowing more live feeds in the future.
Are cameras next?
In a 2018 appearance, Roberts explained the court's reluctance to allow cameras in the courtroom. "I don't think the time has come," he said, suggesting that televising proceedings in the Senate had had a deleterious effect.
"My judgment is that it has the potential of hurting the court," he said ..."You worry about counsel kind of playing to the audience, and I have to be honest, I worry about the justices doing that, and you don't want that." Unlike senators, however, the justices have lifetime appointments.
"We are a very cautious institution," Roberts added. "I think our process for hearing and adjudicating the cases is working very well."
But during the teleconferences this month, there was no grandstanding by any justice, no playing for soundbites or pithy quotes aimed at journalists. As for the lawyers, they seemed mostly satisfied by the format, although some of the more experienced lawyers spent time thinking about how to argue with no visual cues from the justices.
Oklahoma Solicitor General Mithun Mansinghani was one of four lawyers in a case concerning tribal lands. It was his first time arguing before the high court.
"It worked well," he said afterward, "allowing each justice an equal opportunity to question advocates, while requiring advocates to answer questions directly and succinctly without the ability to take discursive detours."
And even though the other lawyers he argued alongside had more experience before the court Mansinghani noted that "we are all first-time 'telephone Supreme Court advocates' doing our best to persuade the court in a novel format."
Amy Howe, the editor of Scotusblog, who has studied access to the courtroom believes the experiment was a success
"Having seen first-hand that live-streaming is not only possible but in fact a big success, the Supreme Court should not return to its pre-pandemic status quo, in which audio was never available in real time, and normally was not available until the Friday after an argument," she wrote.
By Ariane de Vogue, CNN Supreme Court Reporter via The-CNN-Wire™ & © 2020 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.
The Gayly. 5//16/2020 @ 8:45 a.m. CST.