Six More Reflections on Oral Arguments in PTO v. Booking.com (Updated)

Thomas speaks, Breyer pages, Sotomayor mutes, and Blatt snarks.

|The Volokh Conspiracy |

This post will offer a few more reflections on today's unprecedented oral arguments in PTO v. Booking.com. (Here is the transcript.)

First, I was quite surprised when I heard Justice Thomas speak ask questions arguments today. Carrie Severino, who clerked for Justice Thomas, speculates why he chose to speak up today.

Here is her thread:

Justice Thomas asking a question at oral argument now that it's a more civilized questioning process—called it!

My speculation that he would ask questions is because he has frequently complained about how chaotic oral arguments are and how the regular system is disrespectful to the advocates who are interrupted so often.

He says that the justices should spend more time actually listening to the advocates than trying to score rhetorical points.

The current system allows for an organized, civilized method of questioning without any one justice dominating the discussion and while (for the most part) allowing the advocates to answer in full.

Many have described the quarantine as an introvert's dream. Apparently that applies to the Supreme Court as well. Justice Thomas, its most famous introvert, seems to be thriving under the new argument system.

Makes sense. Recently, my co-counsel argued a case in the 5th Circuit. The judges there also took turns asking questions by seniority. It was, for the most part, quite orderly. I don't know if the Justices will keep this approach after social distancing concludes, but it has some virtue that is worth studying.

Second, Justice Breyer had another #BreyerPage about "a combination of four things." (This prediction came true.) He spoke for two-pages, interrupted only by Blatt's "Mm-hmm." At the end, he concluded, "All right. Now that's a lot. But I want to hear your answer to those points." Lisa Blatt replied, "Sure. It's not really a lot." Yes, it was. Remarkably, Lisa managed to address all four points. Then her time was up.

Here is the exchange:

Never change, Justice Breyer.

Third, here is Lisa Blatt's testy exchange with Justice Gorsuch.

MS. BLATT: Okay. So you've read the Tushnet brief and the government's brief. You have not obviously read our expert -

JUSTICE GORSUCH: Well, now -

MS. BLATT: -- that explains how -

JUSTICE GORSUCH: -- that's not fair. Now, come on.

Not many advocates could pull this off. Lisa is lucky she didn't get rebuked by Gorsuch for a lack of civility. He recently chided Paul Clement during arguments in Seila Law v. CFPB for far less. In any event, I found her arguments extremely persuasive. She may have even moved a few justices. She will likely notch another victory here. I still regret she didn't get to argue the Washington Redskins case. Her amicus brief in Matal v. Tam was pitch perfect.

Fourth, this is the closest we'll get to visualizing Justice Sotomayor on mute:

And the Assistat SG:

I had an immediate flashback to Ben Stein: Bueller. Bueller. Bueller.

Finally, it is surreal reading the transcript after having listened to the arguments. Usually, I listen to the arguments after reading the transcript. I could get used to this new normal!

Update: A sixth observation courtesy of Mark Walsh at SCOTUSBlog. I included the following line in my post earlier today:

At 10:00, I heard the live call of Oyez, Oyez, Oyez. I knew it was coming, but the cry still took me by surprise. It felt like a shofar blast. The Court had my attention, but I could't draw near.

I was riffing on the Court's usual cry:

"The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

But today, Mark observed, the Marshal of the Court gave a modified version of the call.

"Oyez! Oyez! Oyez!," Talkin says, "All persons having business before the honorable, the Supreme Court of the United States are admonished to give their attention, for the court is now sitting. God save the United States and this honorable court."

What was missing? We were not "admonished to draw near." Because we can't! Mark explained:

She bangs her gavel. She left out a few words from the normal cry, which is "to draw near and give their attention." The court's Public Information Office confirms that the change was made on purpose. Please don't draw near, the court seems to say, but maintain proper social distancing.

Mark also noticed another deviation from usual protocol:

The voice of Chief Justice John Roberts makes itself known as he calls the case. He does not mention, as he typically would in the courtroom, that today's orders have been duly certified and filed with the clerk, and of course there are no bar admissions.

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  1. “Lisa is lucky she didn’t get rebuked by Gorsuch for a lack of civility.”

    One of the many bad things about the Supreme Court is the clubby circle of lawyers.

    1. “Lisa is lucky she didn’t get rebuked by Gorsuch for a lack of civility.”

      Do such rebukes affect the outcome of the case? If not, who cares?
      nsfw link

    2. A good-faith presumption that people in the justice system are doing their homework has little to do with being “clubby”.

      1. I believe that Bob’s charge of clubbiness is based on Lisa Blatt sliding without rebuke for conduct that would have been expected to earn censure coming from a less familiar advocate.

        Of course, I think Paul Clement would have to be a member of any such club, so I’m not sure the argument actually works.

        1. Okay, fair enough interpretation.

          I don’t see Gorsuch’s two responses as terribly different. Gorsuch was peeved in both cases, and IMO both times were within the error bars as consistent with each other. Probably this case deserved more opprobrium than that one, but they’re not drastically different. (And potentially Clement may have gotten some benefit of the doubt because Gorsuch could see Clement’s face.)

        2. Yes, Clement is a club member, probably Senior Member. Maybe Gorsuch was in a bad mood that day or felt remorse or treated a female in a nicer way.

          “conduct that would have been expected to earn censure coming from a less familiar advocate”

          Calling the judge either dumb or lazy is not usually advisable.

          1. I was shocked when I heard that this morning. I don’t know if she was trying to be joking or not, but it came across as nasty or at least snotty.

            1. Trying to be *jocular

          2. For whatever reason, Lisa Blatt seems to be able to 1. Break the usual rules of appellate (much less Supreme Court) advocacy; and 2. Be extremely successful while doing so.

            To the extent this is a problem (and I think lawyers should probably view it as an opportunity to learn), I think the problem revolves around Lisa Blatt.

            1. Good observation. My prediction is Ms. Blatt will have a spectacular crash and burn moment at SCOTUS if she continues that behavior.

    3. Gorsuch got chastised for being uncivil by Alito in the latter’s Ramos dissent. So, if Gorsuch chastises counsel for being uncivil, I think she’s free to use the, “I learned it from you” response.

      The justices on a given Court set the tone of the discourse. They shouldn’t be surprised if counsel start becoming more snarky in their briefs and arguments. You just have to make sure that you conclude with “I respectfully disagree,” and all is absolved.

  2. The link that’s supposed to go to the transcript actually goes to the earlier post.

    Transcript is available here:

    https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/19-46_6647.pdf

    1. Blackman’s no fool. A basic search engine optimization strategy entails including cross-links to your own earlier content as a means of boosting the ranking of that content. In his next post he’ll mention the transcript and slip in a hyperlink to this post.

      1. Wait until we get the “Making of the Supreme Court reflections post” post.

  3. If Sotomayor didn’t slow-walk that, there’s the problem of having appeared to do so. There’s been some jousting in oral arguments between her and the CJ over the past year. #insidebaseball

    Mr. D.

    1. Do tell. I don’t get the reference. I’m a conservative and I don’t particularly like Sotomayor’s style of questioning, but it is quite obvious to me that she gets publicly chastised for it by the Chief, Alito, and Gorsuch (e.g., “counsel, maybe we can first hear your second and third reasons that you didn’t get to because Justice Sotomayor rudely cut you off” — only slightly exaggerating) whereas Justice Gorsuch (who can be just as tenacious, interruptive, sarcastic, and even rude as Sotomayor, if not more so) rarely if ever receives a similar rebuke (I can’t remember any).

  4. The only quibble I have with this approach to questioning is that it can tend to lead to group-think. I believe it would be a stronger protocol if they went in reverse order of seniority.

    1. In fairness, groupthink is probably not much of a risk for this set of Justices. But it’s a precedent that could be followed by lower courts where that might be more of a risk.

  5. On Observation 6, it appears the Marshal also left “Honorable” uncapitalized. Didn’t notice that myself, but it seems like a big break from tradition.

    1. I’m sure they”ll correct that in the final version of the tape.

    2. I assume that’s a joke, lol, unless you have the gift of differentiating a word said in all lowercase vs initial capitalization, based on sound.

      1. A great speaker, say a Winston Churchill, could probably make you hear the capitalization, but indeed, I meant it as a joke. Or was that, a Joke?

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