Women Advocates to Muted Justices: 5 Tele-Argument Moments

May 13, 2020, 6:56 PM

The Supreme Court wrapped up its historic livestreamed arguments on Wednesday, and the experiment went off mostly without a hitch.

The notoriously camera-shy court took to the airwaves as the justices abide by social distancing requirements.

They heard 10 arguments over six days, including disputes over subpoenas for President Donald Trump’s financial records and so-called rogue presidential electors.

Here are some of the top moments from the arguments.

1. Female Advocates Lead the Way

In another rarity, listeners tuning into the court’s first livestream foray heard an all-female advocate lineup.

Supreme Court arguments are dominated by men, who argued 136 times during the term compared to 20 women.

But the court kicked off the argument sitting with two female attorneys, Justice Department lawyer Erica Ross, and Williams & Connolly’s Lisa Blatt.

Blatt, making her 40th high court argument, managed to infuse her casual argument style in the trademark case involving Booking.com despite the remote setting.

“Okay. So you’ve read the Tushnet brief and the government’s brief. You have not obviously read our expert,” Blatt said to Justice Neil Gorsuch during a tense exchange about the risk of customer confusion.

“Well now, that’s not fair,” Gorsuch responded. “Now come on.”

2. Trump’s Taxes

The most anticipated arguments of the sitting involved the disputes over subpoenas for Trump’s tax returns and other financial records.

The justices heard nearly three and a half hours of arguments in the three cases, dealing with subpoenas from the U.S. House and the Manhattan District Attorney’s Office.

Justices on both sides of the ideological spectrum grappled with how to properly maintain the balance of power between Congress, the executive, and the federal and state governments.

Pressing the president’s attorney, Patrick Strawbridge, on his argument that the House subpoenas weren’t intended to serve its legislative functions, but rather to harass the president, Gorsuch wondered “why should we not defer to the House’s views about its own legislative purposes?”

Justice Elena Kagan suggested that allowing the president to block these subpoenas would put the him above the law.

But all of the justices seemed to struggle with where to draw the line between deferring to Congress and enabling the president to do his job—especially in the current political climate.

“I mean, we both know that there are prosecutors who leak all sorts of information, including grand jury information, to all sorts of media sources,” Justice Samuel Alito said to Carey Dunne of the Manhattan DA, suggesting this quest for documents might be politically motivated.

3. Thomas Speaks

One of the biggest changes from traditional in-courtroom arguments was this unique questioning format, a stark change from the usual free-for-all that’s dominated in-person arguments.

That announcement prompted speculation from court watchers about how Justice Clarence Thomas would handle his turn.

The longest-serving current justice typically doesn’t ask questions during oral arguments, saying that the others ask too many already.

He once went 10 years without inquiring.

The new format, though, emboldened Thomas to ask questions of the advocates every time he got the opportunity.

And with the other justices frequently piggy-backing on his questions—"I have another question I wanted to ask you, and it’s a follow-up to Justice Thomas,” Justice Ruth Bader Ginsburg said during the first argument—perhaps he’ll continue to ask questions when back in the courtroom.

4. RBG Works From Hospital

The justices, like millions of fellow Americans, are working from home these days. But one of them had an even more unique location for arguments: the hospital.

After undergoing a gallbladder procedure May 5, Ginsburg participated in oral arguments from a Baltimore hospital.

One of those was a closely watched case over the Affordable Care Act’s “contraceptive mandate,” requiring employers to provide access to contraceptive coverage. At the heart of the case was the Trump administration’s plans to expand exemptions from the mandate for religious groups.

“The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage,” Ginsburg said.

She was released from the hospital shortly after.

The successful work-from-hospital experience for the 87-year-old jurist gives the aging court flexibility for the future. Gorsuch and Brett Kavanaugh are the only justices under 60 among the nine.

5. Technical Glitches

Though the arguments ran relatively smoothly, given the short notice and trying circumstances, there were a few memorable technical glitches.

At various points during the arguments, several justices seemingly had issues unmuting themselves in order to ask questions.

Justice Sonia Sotomayor was the first offender, though she wasn’t the only one.

“Justice Sotomayor? ... Justice Sotomayor?” Chief Justice John Roberts asked while trying to prompt the Obama-appointee to begin her turn. Another notable feature of the arguments, in addition to being remote and livestreamed, is that, following Roberts, the justices asked lawyers questions in order of seniority, starting with Thomas and moving down the line to the newest member, Kavanaugh.

“I’m sorry, chief,” Sotomayor eventually weighed in.

The very next day, she hadn’t worked out the kinks yet.

“I’m sorry, chief. Did it again,” she said.

Roberts quickly adopted the habit of moving onto the the next justice and returning to the unmuted one once they were ready to go, prompting speculation that the justices were communicating in some way offline.

But, of course, the most memorable hiccup was the “flush heard around the world.”

On the third day of arguments, as Kagan was quizzing Supreme Court veteran Roman Martinez, the unmistakable sound of a toilet flushing was plain for all to hear.

The Latham & Watkins partner didn’t miss a beat. But the subsequent mockery from the public of the livestreaming faux pas was likely exactly what Roberts was hoping to avoid.

Whether it will overshadow the otherwise successful arguments and set back the cause of cameras in the courtroom or live audio, despite the fact that there’s no toilet to flush in the courtroom when things go back to “normal,” remains to be seen.

—With David Schultz

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 editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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