Monday, May 4, 2020

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

By Josh Blackman - May 04, 2020 at 11:15AM

Today at 10:00 ET, the Supreme Court live-streamed. 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. Deputy 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 three-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 Breyer page, Ross said, "Mm-hmm." Breyer was askig about Grocery store selling toilet paper, Pizza.com, iPizza.com (selling Italian pizzas). FFlowers.com (selling fresh flowers).

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, at one point, 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 garbed. But about 30 seconds later, it was fixed. I'm not sure what happened. Also, 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. I half-expected the Chief to say, the now-familiar line, "Justice Soyomayor, 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 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." Gorsuch clapped back, "come on, that's not fair." She started answering, ad 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 widow into live proceedings.

Lisa Blatt has never lost a case at the Supreme Court. I think her streak will remain intact.


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