The Supreme Court's Surreal, Stilted, and Surprisingly Normal Streaming Oral Argument

The Chief strictly kept time, Justice Thomas asked questions, and I think Justice Sotomayor was on mute

|The Volokh Conspiracy |

Today at 10:00 ET, the Supreme Court live-streamed oral arguments. Well, to be precise, they provided C-SPAN with a feed to the teleconference. But close enough. The experience was surreal. The exchanges were stilted. And, after a few moments, it felt surprisingly normal. (I offered my preview here.)

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.

The Chief called the case. Assistant SG Erica Ross provided the first two minutes of her argument. The Chief then promptly interrupted her with several questions. That exchange felt normal. After the Chief was finished, he turned to Justice Thomas. I expected a moment of awkward silence, or perhaps, Thomas saying "Pass." Instead, Thomas asked several questions. He spoke more today than he has in two decades. It was truly surreal.

Next, Justice Ginsburg began to ask questions. And she wanted to follow-up on Justice Thomas's question. I was very glad to hear this attempt to maintain continuity between Justices. I also hope it dispels unfair perceptions that Justice Thomas does't ask questions because he can't. Here, he posed a useful question, which RBG followed up on. Indeed, Justice Breyer came back to Thomas's question a few minutes later. Justice Thomas has said oral arguments are not useful. This experience may give him an opportunity to reconsider that position.

The Chief was very strict on time. He interrupted the advocates at the two-minute mark, even mid-sentence. The Justices seemed to give the advocates more time to answer their questions. And the interruptions were more gentle. At one point, Justice Sotomayor said, "Ms. Ross, let me stop you there." Usually, Sotomayor would simply jump in mid-sentence. I found Justice Kagan had the most aggressive questioning style. She would interrupt and ask several follow-up questions. Justice Breyer did ask a two-minute long question that involved a "combination of four things." At one point, during the #Breyerpage, Ross said, "Mm-hmm." Breyer asked about Grocery stores selling toilet paper,, (selling Italian pizzas). (selling fresh flowers). I did not follow the question.

The arguments ran well beyond an hour. Ross finished around 10:37, without her rebuttal. Blatt finished around 11:13. Ross then took three minutes for rebuttal.  We finished at 11:17.

There were also some pleasantries. Justice Breyer told Ross, "good morning." She replied, "Good morning." Justice Kavanaugh also said "good morning." I liked it. It made the virtual format more familiar. It is common in lower courts to say "good morning." Also, Lisa Blatt made a funny remark. Justice Sotomayor chuckled, but I think the other Justices were on mute. It was refreshing.

There were some technical glitches. At one point, Justice Breyer's voice was extremely garbled. But about 30 seconds later, it was fixed. I'm not sure what happened.

There were some delays. After Justice Alito finished questioning Ross, the Chief said "Justice Sotomayor." Silence. "Justice Sotomayor." She chimed in, "Sorry Chief." If I had to guess, she did what we all do; kept herself on mute. It humanized the Justices in a positive way. I half-expected the Chief to say, the now-familiar line, "Justice Sotomayor, please take yourself off mute." After Blatt finished, the Chief told Ross she had 3 minutes. Silence. The Chief repeated, "Ms. Ross." Ross came back on the line, and apologized. I think the SG was also on mute.

I did miss some of the visual cues. For example, at one point Ross mentioned a Henry Friendly decision. I instinctively thought to look at the Chief to see if he reacted to a mention of his former boss. And I would have loved to see Justice Thomas jumping in; all the members of the press corps would have started feverishly writing. At one point, Blatt told Justice Gorusch, "You have read the Tushnet brief. You obviously have not read our expert." (Not many advocates can get away with that barb, but Blatt can.) Gorsuch clapped back, "come on, that's not fair." She started answering, and he said "Briefly, Ms. Blatt." I would have loved to watch that exchange. We lost all of those theatrics, but we gained an important, and long-overdue window into live proceedings.

At 11:17, the Chief interrupted Ross, and said "the case is submitted." I think I faintly heard the Marshall saying "All rise," but C-SPAN cut the feed off. What an experience!

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  1. The “Chief” is a piece of garbage should be impeached.

    1. For what?

      1. For NYSRPA and Sebelius , for starters.

        1. I urge you to review how Thomas Jefferson impeached Justice Sam Chase, essentially for equally political reasons as you say imply that Chief Justice Roberts should be impeached. Having lost, Jefferson inadvertently set the precedent that the best way to control the courts, is to control the membership of the courts.

          In my humble opinion, the best thing to do is to re-elect Trump. As it takes for votes to grant cert, with a Ginsburg and/or Breyer replacement pretty certain, Roberts will have to placate the Orginialist wing rather than doing his bad attempt at being Solomon.

    2. Executed too, or just a light maiming?

  2. The left loves to treat Thomas like a piece of trash. But that is the treatment they give any minority who dares to walk off the democrat plantation.

    The media though thinks it is “funny” when the left trashes a conservative minority. But when the right does it well that is “hate speech”…

  3. I once saw a conjecture that Justice Thomas would pass questions to another Justice to ask in his place. Could this be an indication that the conjecture was correct?

  4. Called it.

  5. Justice Thomas has explained his view about rudeness of constant interruptions of counsel. Perhaps he feels different when justices are queued up for question period and the format is less conducive to constant cross-talk.

    1. Perhaps he is a southern gentleman who doesn’t want to interrupt others.

    2. He also thinks others do an adequate job asking all the questions he’d ask. I imagine if he had to go last, he wouldn’t have been as inclined to ask questions.

    3. This was my thought. He doesn’t want to interrupt an argument for it, but if he has a designated time for asking questions, he’s going to ask a question. It’s not like the attorneys could’ve used that time to continue whatever they preferred to argue. If Thomas hadn’t asked something, then Ginsburg would’ve just asked her question instead.

    4. I’m far from being a fan of Thomas, but I think the criticism of him for not asking questions is unfair.

      ISTM that much of the questioning is just showing off and attempts to intimidate whichever lawyer you disagree with. How much do the Justices’ questions really contribute to their understanding of the case?

  6. Ummm — name of the case?

    1. Ummm — there was only one case argued this morning, and this post tells you where the audio is hosted.

    2. Umm, does Google not work for you?

      1. Duckduckgo works better, but this is an issue of academic rigor.

        1. …academic rigor? C’mon. Just an oversight from someone way more eager to see what argument would be like, than to be fastidious about giving fully-polished observation. It’s pretty much just like a typo. Lighten up!

        2. It is? I thought you were asking about a blog post, not a journal article.

  7. When I did phone oral arguments at the state level, I held the receiver away from me, but never risked going on mute because I was worried about technical issues.

  8. It is the website that we can have the game looking for.

  9. Lisa Blatt has lost cases at SCOTUS before. Back when First Mondays interviewed her, tho, her record was 32-1. (!!!) She did end up losing a case later that term (I think Bravo-Fernandez v. United States), tho. If I manually compute forward from that point, if I’ve counted correctly, she’s 36-2 right now. Not unanimous, but still pretty ridiculous.

    1. …this was responding to “Lisa Blatt has never lost a case at the Supreme Court. I think her streak will remain intact.” which appeared at the end of the post in Feedly where I read it. (It doesn’t appear here, presumably because Josh removed it.)

  10. This was really interesting to listen to. It’s harder for me to follow along when I’m just listening instead of seeing video, but it was still better than not watching at all. I liked hearing the justices’ questions and the flow of the argument, even though patent law is not one of my areas.

    1. Trademark! It has nothing to do with patents!

      1. Given that I said that’s not my area of law and the style of the case was “US Patent & Trademark Office”, whatever. 🙂

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