Going virtual has changed the high court
Like other courts across the nation, the U.S. Supreme Court has continued to hold hearings — remotely — during the coronavirus pandemic, considering arguments on issues as monumental as the survival of the Affordable Care Act. But Justice Stephen Breyer says that in the old days, the justices often used their questions to quiz, dispute or lobby one another. That’s changed now.
Hearing cases by telephone, with each justice questioning lawyers for a few minutes at a time, has “some pluses and minuses,” Breyer, a San Francisco native, said in a “fireside chat” with one of his former law clerks, U.S. District Judge Vince Chhabria of San Francisco. The conversation was posted online earlier this month.
“Each of us has to listen more carefully, I think, to what the lawyers are saying and to what each other is saying,” Breyer said. “The negative is, it’s harder to carry on a conversation with one or two questions.”
During inperson hearings, Chhabria observed, “Normally you are all talking to each other in your questions. Not now?”
That’s right, Breyer said. He said the new format has some drawbacks but is “very fair to everybody on the court, and to the lawyers.”
It’s certainly less lively than inperson hearings, said Rory Little, a law professor at UC Hastings College of the Law in San Francisco and a former Supreme Court law clerk. Under the previous format, after a lawyer’s opening statement it was open season, with justices firing off questions whenever they chose and sometimes interrupting the attorneys or one another.
“Before the lawyer could answer, another justice would intervene and say, ‘What about this?’ ” Little said. “That form of argument is gone.” And so are the snippets of humor that occasionally would emanate from the bench, he said.
“The oral arguments are less interesting to listen to because you’re not seeing or hearing the justices’ views evolve in real time,” said another former Supreme Court clerk, Orin Kerr, a UC Berkeley law professor.
He said the justices, after individually reviewing written arguments in each case, have often used hearings in the past to hold their first discussions with one another. Now those conversations will probably wait until a posthearing conference, Kerr said.
On the other hand, the public — apart from those who braved earlymorning lines at the courthouse — couldn’t listen to live arguments in the past. The court made audio recordings of the hearings available at the end of each week, starting in 2010, but did not livestream them until the first telephonic hearing in May. The justices still ban cameras, still or live, from their courtroom.
And there’s another new element — the voice of Justice Clarence Thomas.
Seated in 1991 despite allegations of sexual harassment, Thomas has often spent years without asking a single question at oral argument, including a decade of silence from 2006 to 2016. He has explained, at times, that he did not want to interrupt the lawyers, that he gets all the information he needs from the written filings, or that he thinks his colleagues talk too much.
But under the current format, Thomas, the justice with the most seniority, is second in line after Chief Justice John Roberts for questioning the lawyers, and has regularly taken his turn.
“He asks a lot more questions when it’s a more orderly process,” Breyer told Chhabria. “And that’s very good.”
Thomas “is transformed into a different justice,” at least during the hearings, Little said.
No one is predicting, however, that conducting the hearings remotely will change the outcomes of cases on a court with a 63 conservative majority, its largest in decades.
One who likes the current format is Michael McConnell, a Stanford law professor and former federal appeals court judge, who argued before the Supreme Court Oct. 5 in its first case of the current term. He represented the state of Delaware defending a law that requires judges on its top courts to be either Republicans or Democrats, with no party holding more than a oneseat majority.
The hearings “lack the excitement and sheer fun of the courtroom,” McConnell, who took part by telephone from a family cabin in Utah, told the National Law Journal. But, he said, “the justices did not interrupt each other or counsel, which permitted more complete answers and a coherent line of questions from each of them.”
“It seemed to me that the questions were better considered than they sometimes are when off the cuff,” McConnell said. “When the court returns to the courtroom, I hope the chief justice will continue the practice of giving each justice a certain period of time without interruption by the others. It could be the best of both worlds.”
Not all court watchers agree that the justices have redirected their interrogation in the remote hearings. Little, of UC Hastings, said he still hears justices ask questions that appear to be aimed at their colleagues — for example, what he described as Justice Sonia Sotomayor’s “softball” questions that rephrased arguments by a lawyer on the side she favored.
One example appears in the transcript of the Nov. 10 hearing on the Affordable Care Act, when Sotomayor was questioning Donald Verrilli, the lawyer for the Democraticcontrolled House of Representatives arguing in support of the law.
While Republicanled states and the Trump administration were contending that Congress’ elimination in 2017 of a tax penalty for individuals who failed to obtain health insurance made the entire law unconstitutional, Sotomayor said, by leaving the rest of the law in place, “Congress has already told us that it doesn’t want the rest of the act to fail, correct?” She was essentially asking Verrilli to agree with his own argument.
“That’s certainly our position, Your Honor,” Verrilli said.
On the other side, Justice Samuel Alito appeared to be presenting his own arguments for overturning the law while questioning Verrilli.
Some members of Congress who voted for the 2017 version of the law may have thought it would not be affected by repealing the tax penalty, Alito mused, “but others who voted for it may have done so precisely because they wanted the whole thing to fall.”
The court, Verrilli replied, should not presume members of Congress were “acting in violation of their oath to uphold the Constitution by voting for a provision they knew to be unconstitutional in the hope it would bring the law down.”