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Accidental Promotions to Basketball: Supreme Court’s Remote Term

May 17, 2021, 8:46 AM

The U.S. Supreme Court wrapped up its first full term of all-remote arguments with sporadic tension, a bit of levity, some tinkering by the chief justice—and no flushing toilets, this time around.

The arguments in 58 cases between October and May were most notable for the absence of late liberal icon Ruth Bader Ginsburg and the addition of her replacement, Amy Coney Barrett, who stretched the court’s conservative majority to 6-3.

The pandemic last spring forced the justices out of the building and into an unprecedented phone-in format, during which each took turns asking questions of advocates. Here’s a look back at some of the most memorable moments in remote arguments this term.

No[torious] RBG

The Supreme Court heard its first argument Oct. 5, just weeks after Ginsburg died at 87 due to pancreatic-cancer complications.

Her absence was particularly felt during the court’s first civil procedure case, Ford Motor Co. v. Montana Eighth Judicial Dist., that was heard Oct. 7.

Although Ginsburg became known as the “Notorious RBG” over her pointed dissents, she began her legal career as a civil procedure professor and was a leading voice on the topic.

“It’s never good to be on the wrong side of a Justice Ginsburg opinion, but particularly on a jurisdictional issue,” Justice Brett Kavanaugh said.

Barrett Arrives

Barrett missed the first month of arguments, making her debut on Nov. 2.

“I want to pick up on the thread that Justice Kavanaugh was just exploring with you,” she said to one of the advocates in the Freedom of Information Act case, U.S. Fish and Wildlife Services v. Sierra Club.

It wound up being her first majority opinion, a 7-2 ruling against environmental groups seeking government documents.

Out of Time

Arguments by phone worked better for some.

Justice Clarence Thomas typically doesn’t ask questions during in-person sessions, but he’s been an active participant remotely.

“Can’t there be comments about other hot-button issues or about current controversies, like protests or Black Lives Matter, Antifa, or Proud Boys or something like that, people can take sides that are just as disruptive in the school setting as comments about” a specific teacher, Thomas asked during April’s student-speech case, Mahanoy Area School Dist. V. B.L.

Justice Samuel Alito didn’t appear to like the two-minute limit to ask questions that came with the new turn-based format.

“I have two questions that are important to me,” Alito said during arguments Nov. 30 in Trump v. New York, a 2020 Census case. “I hope I’m going to be able to squeeze them both in in my time.”

He didn’t.

‘That’s Helpful’

Other justices, particularly Elena Kagan, found ways to regain question time from advocates.

During the voting rights case Brnovich v. DNC, she had “a number of hypotheticals”
for Jones Day partner Micheal Carvin. Carvin twice interrupted her, attempting to continue his answer.

“That’s helpful—that’s helpful, Mr. Carvin,” Kagan said. He stopped talking.

‘Just Elena Kagan’

Perhaps sensing frustration with the strict format, Chief Justice John Roberts at least once loosened arguments in a manner reminiscent of the usual give-and-take style.

Noting that they’d given additional time to the other side in a March Fourth Amendment case, Caniglia v. Strom, Roberts invited Skadden partner Shay Dvoretzky to keep going.

During “that time, my colleagues, of course, are free to ask additional questions.”

“Well, Mr. Dvoretzky—this is just(ice) Elena Kagan,” she jumped in to ask a question.

Justice Neil Gorsuch asked Dvoretzky “to back up a moment because I think you blew past it pretty quickly.”

No Questions

The justices didn’t always take advantage of their limited time. In fact, the April 20 argument in United States v. Gary resulted in what the National Law Journal said was the fewest number of justices asking questions of one side since 1991.

Four justices opted out.

“No. Thank you very much. I have no questions,” Stephen Breyer said when it was his turn.

“I have no questions at this time,” Gorsuch said.

Roberts then prompted Kavanaugh.

“No additional questions,” he said.

“Justice Barrett,” Roberts moved on.

“None from me either,” the junior justice replied.

A Light Moment

Another setback to the court’s remote argument style—at least according to Breyer—was that there “rarely is a light moment.”

But listeners tuning into the March 31 arguments over NCAA student-athletes got a laugh when former Solicitor General Seth Waxman called Thomas chief justice.

Waxman tried to recover by saying he thought the long-serving justice would do a great job.

“There’s no opening, Mr. Waxman,” Roberts joked.

Basketball Court

Basketball references made it into at least two arguments, both involving Kavanaugh, who has coached his daughters’ teams.

At the April 28 student-speech case, involving a teenager who criticized her school on social media after failing to make varsity cheer, Kavanaugh said “as a judge and maybe as a coach and a parent too,” he thought the school went too far in suspending her.

“And just by way of comparison and to show how much it means to people, you know, arguably, the greatest basketball player of all time is inducted into the Hall of Fame in 2009 and gives a speech, and what does he talk about? He talks about getting cut as a sophomore from the varsity team,” Kavanaugh said, speaking about Michael Jordan.

Kavanaugh’s mind was still on basketball a week later, during a rare May argument over crack-cocaine sentencing in Terry v. United States, the timing of which was prompted by the Biden administration’s change in positions to side with the defense.

“This all kind of stems to June 19, 1986, when Len Bias died,” Kavanaugh said of the crack/powder disparity passed into law that year following the cocaine-induced death of the University of Maryland star and the Boston Celtics top pick.

Breyer’s Last Argument?

That Terry case May 4 could’ve been Breyer’s last high court argument.

Progressive groups have urged the 82-year-old jurist to step down while the Democrats hold the majority in the Senate by the slimmest of margins.

That alone would make the argument noteworthy, but Breyer’s last exchange of the session was uncharacteristically tense.

Seemingly upset that the Biden Justice Department had changed the government’s position from the previous administration, he asked the lawyer appointed to argue the government’s side what the administration was thinking.

Why “did the government argue what it argued?” Breyer asked in a raised voice.

“Your Honor, I am here to explain many things,” Adam Mortara said. “The behavior of the United States Government in this case is not one of them.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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