Top court awash in intrigue over sound

Heard during live stream of historic hearing

At the outset of U.S. Supreme Court oral arguments, which are being held from homes via telephone and livestreamed during the coronavirus pandemic, Chief Justice John Roberts Jr. warns everyone to turn off their cellphones.

But he doesn’t remind people to hit the mute button when they’re not speaking. Maybe he will after Wednesday’s debacle.

That’s because toward the end of the arguments, at about 59 minutes out of the scheduled hour, it sounded as if a toilet was flushing.

To be fair, there’s no proof someone had flushed the toilet during the call. Still, the clunk of some sort of mechanical device followed by the sound of swirling water was evidence enough. “Res ipsa loquitur,” as they say in Latin: “the thing speaks for itself.” Or to play on the famous quote of the late Justice Potter Stewart on the subject of obscenity, “we know it when we hear it.”

The lawyer speaking at the moment took no note of it. The justices took no note of it. The transcript took no note of it. Had it occurred in the normal setting for flushes, no one would have taken note of it.

But this was an out-ofcontext flush, in the middle of a Supreme Court oral argument, already historic because the lawyers and the justices were all on phones and it was being livestreamed for all to hear.

Those listening in real time were, of course, surprised to hear a toilet flush.

“Did a toilet just flush during #SCOTUS oral arguments?!?” tweeted the Supreme Court reporter for Bloomberg Law.

“Uh, that sure sounded like a toilet flush in the background of the Supreme Court oral argument,” tweeted a Reuters court reporter.

No one has owned up to the flush, if indeed it was one. It could have been anyone on the phone call, or someone near the phone of anyone on the call. It might have been a spouse, or perhaps a child. It could have come from inside a bathroom (let’s not go there) or nearby a bathroom. Fortunately, whatever sounds preceded the flush sound were imperceptible.

The Supreme Court has always resisted live broadcasts of oral arguments, audio or video, out of an apparent concern about people grandstanding or the court becoming a circus. Nobody ever worried about toilet flushes. Will the toilet incident reinforce that resistance?

“Flush-gate is not in any way an indictment of live-streaming #SCOTUS arguments …” a law professor tweeted. And what really was the disruption?

The justices and the lawyers behaved as if nothing happened. Nobody skipped a beat, as far as we know.