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Justice Barrett’s Remote Arguments Yield Only Hints of Approach

Nov. 16, 2020, 9:51 AM

Justice Amy Coney Barrett was direct when asking questions in her first Supreme Court oral arguments that yielded only a partial snapshot of how she might handle them in the future because they were conducted remotely.

The first set of arguments is usually a chance for litigators, court observers, and the public to see how aggressive new justices will be during questioning and how their presence will affect the dynamic of the nine-member court.

Since May, however, arguments have been held over the phone due to social distancing around the pandemic. The remote format in which the justices take turns asking questions in order of seniority and without interruption—save an abrupt ‘your time is up’ from chief timekeeper John Roberts—replaces the more freewheeling exchanges of in-person sittings.

The so-called “hot” bench in the ornate chamber is more pressure packed, and reveals facial expressions and how the justices interact with each other, including when they cut in. Side issues also can creep in, and arguments sometimes morph into discussions. There may be tension among the justices, and laughter sometimes.

Telephone arguments “don’t give us a good sense of whether the justice would lay low and wait to ask a lot of questions or would jump right in the way (Neil) Gorsuch did,” Washington University law professor Daniel Epps said.

Getting to It

Barrett, praised at her confirmation hearings multiple times for her sharp legal mind and her ability to frame legal issues succinctly, is no stranger to the court or to oral arguments in federal appeals. The former Antonin Scalia clerk and judge on the U.S. Court of Appeals for the Seventh Circuit revealed no first-time jitters and was an active questioner in the eight cases that came before the justices between Nov. 2 and 10, including the latest Obamacare challenge.

One thing we did learn is that “for someone who spent a majority of her career as a law professor, her questions have not been classroom hypothetical,” said Goodwin Procter partner William Jay.

“They have been very direct,” and “they have been generally prefaced with some statement about what she’s getting at,” said Jay, who has argued 17 cases before the Supreme Court.

On her first day of arguments, she got straight to the point while questioning first-time advocate Sarah Harris of Williams & Connolly.

“Let me expand it beyond Mr. Salinas’s motion here, because what I’m getting at is, even if you could consider some grounds for not reopening a determination of rights or liabilities, I’m not sure that’s true of all,” Barrett said on her first day of arguments in Salinas v. Railroad Retirement Bd.

Case Western law professor Jonathan Adler agreed. “She’s tended to ask focused questions that probe the arguments of the parties and the underlying reasoning,” he said.

But Barrett “does not tip her hand much,” Adler said.

‘I’m very sorry, Mr. Chief Justice’

New justices often lay low during their first arguments, perhaps to get used to the courtroom dynamics.

“If any other justice wants to claim the time, you generally have to recede” as the junior justice, Jay said.

That, though, isn’t always the case. Justices Sonia Sotomayor and Neil Gorsuch chimed in frequently during their initial arguments in 2009 and 2017, respectively.

In just his second day of arguments, Gorsuch interrupted Chief Justice John Roberts to correct which highway runs though Montana in a jurisdiction case. Later proven wrong, Gorsuch again had to interrupt arguments.

Gorsuch and Sotomayor both have remained active questioners on the bench, pressing advocates for direct answers and not allowing them veer away from the topic.

Searching For an Ally

The telephone argument means it’s hard to tell “how she’ll turn out to be as a justice,” Epps said.

The structured format provided no opportunity to learn how willing she is to ask the first question or to interrupt counsel during a colloquy with another justice once oral arguments return to their traditional format.

And it’s also hard to know to what extent the other justices will start to pick up on her line of questioning since, under the current format, she’s the last one to ask questions of the lawyers in each round.

“You could tell very quickly when Justice Kagan came on the court that people would say, ‘I’d like to go back to Justice Kagan’s question’ really quite frequently,” Jay said. “Same thing with Justice Alito.”

It signaled that the other justices were searching for an ally, he said.

“But nothing in what I’ve seen so far changes my priors on the kind of justice she’ll be"—conservative and willing to rethink big questions, Epps said.

For example, in a case pitting religious freedom against LGBT rights, Barrett signaled she may be willing to overturn Employment Division v. Smith, a 30-year-old case saying that governments don’t have to provide religious exemptions for a “neutral law of general applicability.”

Conservatives looking to strengthen religious rights have sought to take down Smith since it was decided in 1990, but it has stubbornly remained.

Barrett, though, explored was a post-Smith world might look like.

“What would you replace Smith with?” Justice Barrett wanted to know.

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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