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Reading the Justices a Potential Challenge With Phone Arguments

April 14, 2020, 8:51 AM

The Supreme Court’s plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said.

“We’re in a new frontier here,” said Colorado Attorney General Phil Weiser, who will argue remotely in an election case on behalf of the state.

While lawyers are thankful that the court is showing historic flexibility amid the coronavirus pandemic and moving forward with their cases beginning May 4, they wonder how things will ultimately work via phone.

“It will be interesting to see how the rough-and-tumble that makes Supreme Court arguments so challenging and fun will translate to the tele-conference,” said Jenner and Block’s Ian Gershengorn. He’s arguing a tribal case during the special sitting.

“This will be the largest panel of active questioners I’ve ever heard on a purely telephonic oral argument,” noted Goodwin partner William Jay, who has argued 17 high court cases and has argued by phone elsewhere previously.

Deliberative Justices

Turtles abound at the Supreme Court—a symbol of the court’s deliberate pace. The technological shift to remote proceedings is a dramatic step for an institution reluctant to embrace change.

Oral arguments are typically held before the justices and the public in the courtroom with advocates presenting their sides and the court asking questions. The sessions usually last an hour, and the pace can be daunting. The current Supreme Court is known as the hottest bench ever, meaning they ask more questions than any other slate of justices.

Advocates, who must stand for their 30-minute presentations, are allowed to take notes up to the lectern. But their co-counsel, or second chair, is seated nearby if needed.

Arguing attorneys are close enough to see the justices’ reactions, which sometimes includes whispering behind the bench or passing notes to one another.

By holding remote arguments, the Supreme Court is joining state and federal courts around the country that are adapting to social distancing and stay-at-home guidelines during the Covid-19 pandemic.

The court is doing the right thing “by being flexible and showing that the wheels of justice continue to turn in this challenging time,” said Latham & Watkins partner Roman Martinez, who is arguing one of those remote cases, regarding the Telephone Consumer Protection Act.

Time-Sensitive Cases

In addition to the subpoena disputes over access to President Donald Trump’s financial records, in Trump v. Vance and Trump v. Mazars,the court will also consider two separate disputes involving “faithless presidential electors"—that is, members of the Electoral College who don’t want to vote for the person they pledged to vote for.

“The Court’s decision to allow argument via teleconference in some of its more time-sensitive cases” like these “perhaps reflects an awareness that it could be important to decide some of these issues before the next election cycle,” said Bryan Cave partner Barbara Smith, who clerked for Justice Samuel Alito in the court’s 2015 term.

“It makes a lot of sense in our case,” Weiser said.

But the reason for scheduling some of the other cases was unclear. Some of the rescheduled cases were originally set to be argued during the March sitting, others during April.

Perhaps the justices cherry-picked the cases they thought would be easier to decide, said Harvard law professor Lawrence Lessig, who will be arguing one of the faithless elector cases.

Proper Preparation

And while telephone arguments are a first in the Supreme Court, some advocates have experience working remotely.

Weiser noted that his office has been conducting virtual meetings during the Covid-19 outbreak, and Lessig said he’s gotten more comfortable with remote working by teaching remotely for the past three weeks.

Sidley Austin’s Carter Phillips, a longtime Supreme Court advocate, said he’s argued in other courts via phone.

But whatever experience advocates have with phone arguments, even experience with three-judge appellate panels, it might “not translate to a nine-Justice Supreme Court teleconference,” Smith noted.

That’s why Martinez and Weiser said they plan to do their “moots” by phone, too. Intense moot court sessions, where other lawyers play the role of the justices hurling questions at the advocates, help lawyers prepare for the big day.

“How you practice is how you play,” Weiser said.

Toddlers and Dogs

In some ways it is easier to have a remote hearing, Phillips said. Counsel “can spread out a little bit and doesn’t have to make eye contact all the time.”

Lessig noted that he no longer has to worry about getting a haircut.

But one major drawback is the inability to judge the reactions of the justices, Lessig said. That’s been the most challenging thing about teaching remotely, he said, noting that gauging the justices’ reaction to your argument, like gauging his students’ reaction, is an important part of oral argument.

The justices’ non-verbal cues can “often shed light on their thinking and can shape how best to present the case for my client,” Martinez said. “That said, in the handful of telephonic arguments I’ve conducted over the past month, I’ve found that the format forces me to listen even more carefully to what my adversary is saying and the questions from the court.”

Beyond that, there are several potential logistical issues for the court and arguing attorneys.

How will the court signal that attorneys are running out of time, Phillips wondered. Typically the court uses lights on the lectern—white and red—to signal when an advocate is running out of time.

He also noted that it could be difficult for less experienced advocates to know which justice is asking the question without looking at them.

“In the courtroom, notes are regularly passed between the two advocates arguing on the same side,” Goodwin’s Jay added. How will counsel be able to communicate with one another, he wondered.

And be sure to “bribe the kids and dogs liberally” on the day of the argument, he said. “I personally suggest a frozen Kong filled with peanut butter as a way of keeping the dog busy for at least 30 minutes.”

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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