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Appearing before the courts of appeal is normally the dullest kind of litigation practice. Unlike the trial courts, where witnesses testify, opposing counsel jumps up and down making objections, and the lawyers occasionally huddle with the judge away from the jury at “sidebar,” the appellate courts are usually staid affairs, with the lawyers first submitting written legal argument, and then answering questions posed by the judges.

One exception to the dullness factor, though, has been the U.S. Supreme Court. For about the last 30 years, the Court has been a “hot bench,” with the justices barely giving the attorneys time to introduce themselves before cutting in with questions. Some of the justices, such as Ruth Bader Ginsburg or the late Antonin Scalia, were never shy about jumping into the fray. Indeed, Scalia was so aggressive in questioning almost from his first day on the Court that one of the other justices turned to a colleague and whispered, “Do you think he even knows the rest of us are here?”

That’s why the Court’s recent reaction to the Covid-19 crisis has gotten a lot of attention. For the first time in its history, the court has been hearing oral arguments by telephone -- and even more groundbreaking for the Court, it has allowed the oral arguments to be livestreamed. The court has actually audio recorded its oral arguments since 1955, but for many years they were stored at the National Archives in Washington, and someone had to go there in person to hear them.

That’s still true for the older recordings, and until 2010, the recordings from the court’s previous Term were not available until the beginning of its following Term. (A “Term” runs from October of one year through the end of June the following year.) But since 2010, the audio recordings of the Court’s oral arguments have been posted on the court’s website on Friday afternoon each week the court hears cases.

There had already been some changes afoot at the Court even before the Covid-19 unpleasantness. Last fall, the court announced that the lawyers for each side would be allowed to speak, uninterrupted, for two minutes before any questioning could begin. The Court even installed a little white light to signal when the questions would be allowed -- something to accompany the red light that the court has used for years to signal “Time’s Up!”

With the advent of Covid-19, however, the court was more or less dragged to the next step in opening up its processes. The court has never allowed live video of its proceedings -- or indeed, any photography at all. (There is only one known photograph of the court in session, from the 1930s, when a reporter sneaked in a camera.) Whereas Congress has allowed some of its proceedings to be recorded at least since the 1940s, and has allowed live video since the 1970s, the Supreme Court has adamantly resisted all but those audio recordings.

The difficulty of knowing who is speaking over the telephone has also had something of a “cooling” effect on that “hot bench.” Under the Court’s new telephonic rules, the justices ask questions by seniority instead of simply jumping in with questions whenever they like. So, Chief Justice John Roberts goes first, followed by Justice Clarence Thomas, and so on.

For “Silent Clarence” Thomas, in particular, this has been something of a renaissance. Thomas has been renowned for almost never asking a question in oral argument. In 2016 he made headlines by doing so -- after more than 10 years of silence. He then made headlines again in 2019 by again asking a question -- after three more years since 2016. But knowing that his fellow justices won’t be cutting in, and likewise, won’t be cutting off a lawyer’s answer to his questions, Thomas actually has participated in the oral arguments by telephone.

Still, there have been a few bugs. During one of the earliest oral argument sessions, as one of the attorneys was speaking, in the background one could hear the distinct sound of a toilet flushing. This was presumably one of the justices who had forgotten to mute the telephone; none of the lawyers likely would have dared.

Before the Supreme Court got its own building in 1935, the justices did most of their work at home, and heard oral argument in the basement of the Capitol Building. Covid-19, however, has put the justices back to working in their homes -- where they can read written arguments, write opinions, and ask lawyers questions. And occasionally, flush a toilet.

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