SCOTUS Livestream Debut Bodes Well For Arguments to Come (1)

May 4, 2020, 6:53 PMUpdated: May 4, 2020, 8:32 PM

The U.S. Supreme Court’s first foray into livestream audio of arguments delivered by phone went relatively smoothly on Monday, given all that could have gone wrong.

The high court pulled off the unprecedented event without any major hitches as the world listened live via CSPAN. The broadcast gave court watchers and lawyers arguing later in the telephonic session the opportunity to gather intelligence on what to do when it’s their time to dial in.

Veteran high court advocate Lisa Blatt and assistant to the U.S. solicitor general Erica Ross were the test subjects in the notoriously techno-cautious court’s electronic experiment made necessary by the coronavirus pandemic. Their clash came in an otherwise low-profile trademark case over the propriety of protection for “Booking.com.”

“The argument went remarkably well, and it was a great opportunity for the public to hear the Court at work—live—in the kind of bread-and-butter statutory case that makes up most of the Court’s docket,” said Zachary Tripp, co-head of the appellate practice group at Weil Gotshal & Manges, and a former assistant to the U.S. solicitor general.

“My basic expectation is that the structure of the next few arguments will be unchanged given how smoothly the arguments went today,” Tripp said.

The arguments also broke ground by employing a new format with the justices asking questions in order of seniority following Chief Justice John Roberts, instead of the usual free-for-all. To some observers, that shift in procedure was just as notable as the livestream itself.

It led to perhaps the most noteworthy aspect of Monday’s proceedings: the usually reticent Justice Clarence Thomas querying both Blatt and Ross.

“Giving each Justice a defined slot of time, with a few minutes to ask questions, is a fascinating shift from the usual free-flowing arguments with many interruptions,” Tripp said. “It was also very effective, as each Justice could use their time to ask sharp questions, with time for the advocate to give answers without interruption from others.”

Both Colorado Attorney General Phil Weiser and attorney Jason Harrow, who’ll square off against one another in the final argument of the term, agreed that it seemed to allow the advocate to focus in on the substance of the justice’s question.

The court’s usual fracas, in which advocates are frequently cut off in the middle of their answers, just isn’t conducive to a sustained conversation, Weiser said.

When you’re answering a question from a hot bench, you’re worried about getting interrupted before you’ve answer the question, Harrow said. And sometimes you’re still trying to answer a previous question, he added. The men will match wits on May 13 in a dispute over punishment of so-called faithless electors, Electoral College members who cast their ballots for a candidate other than who won their state’s popular vote.

Latham & Watkins’ Roman Martinez, who’s arguing a robocalls case on Wednesday, noted that “each lawyer got an opportunity to really lay out her case and respond to the most pressing concerns of the justices.” There was less follow-up and piggybacking on their questions, but that was inevitable, Martinez said.

“On the whole,” he said, “it was a very constructive exchange.”

“The advocates generally did a great job dealing with a difficult and uncertain situation,” Goodwin Procter’s Jaime Santos said. They “did not miss a beat, and this format did not seem to diminish their ability to advocate for their position in any way.”

Santos said she “really appreciated the fact that this landmark argument highlighted two incredible women advocates.” With the exception of another assistant to the solicitor general, Morgan Ratner, who’s arguing next week, the remaining lawyers arguing in the two-week session are men.

While Roberts ran a relatively tight ship, it wasn’t completely wooden.

The chief justice did a nice job playing traffic cop, making sure each justice got answers to their questions while still moving things along, Weiser said.

“I appreciated the Chief’s flexibility—giving extra time to both advocates and allowing the discussion to go on a bit longer when a particularly useful line of questioning was under way,” Santos said.

“I’m not quite so sure that the Justices loved this format—for some, it seemed to cramp their ability to engage with the advocates and ask questions responsive to the advocates’ arguments in real time. But generally, everyone dealt with it pretty well,” the Goodwin lawyer added.

Martinez said listening to the argument won’t change how he prepares for Wednesday. The “core challenge for any argument remains the same,” he said, that is to “try to listen closely to the justices’ concerns and answer them as concisely and convincingly as possible.”

But both Weiser and Harrow said they were making small changes.

“We just had a moot immediately following the argument, and we added a person playing the role of the Chief Justice to enforce loose time limits,” Harrow said.

Weiser said they’ll take turns questioning in the remaining moots to replicate the justices’ questioning.

And all of the advocates will have to start anticipating questions from Justice Thomas.

Sound Off, Sorry

Even the high court wasn’t immune from the small gaffs that have become a theme of the less serious side of the coronavirus era.

Justice Sonia Sotomayor seemed to take a moment to unmute her microphone before she jumped in for her turn to question. Roberts had to follow up to see if she was there. “I’m sorry, Chief,” Sotomayor replied before getting going.

An exchange between Sotomayor and Blatt showed that the remote nature of the arguments, though it robs participants of cues, doesn’t totally eliminate personal interaction. Sotomayor laughed when Blatt, responding to a tough questioning from the justice, said Sotomayor would have voted against Blatt’s client had she been the trial court judge in the case.

At one point during the proceedings, Justice Stephen Breyer’s audio briefly became static and muffled before returning to what passed for normal.

Martinez said he will work from his office for better sound quality. Colorado’s Weiser said he’ll do the same, with a few other people to help out. Neither man is planning to take advantage of the lack of video by wearing pajamas.

“I’m a firm believer of getting into the right frame of mind,” the state attorney general said.

During rebuttal, Erica Ross—the assistant to the solicitor general—seemed to have kept herself on mute for too long before launching into her closing argument, prompting the chief to call out several times for her to begin.

“Thank you, Mr. Chief Justice,” she said. “Sorry about that.”

(Updates with comments from Colorado Attorney General Phil Weiser and attorney Jason Harrow)

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

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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