Monday, May 4, 2020

Five More Reflections on Oral Arguments in PTO v. Booking.com

By Josh Blackman - May 04, 2020 at 03:11PM

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 did'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 deputy 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!


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