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Supreme Court Arguments Resume — But With A Twist

The Supreme Court
Mark Sherman
The Supreme Court

The U.S. Supreme Court begins an extraordinary two weeks of oral arguments Monday. It will be the first time in history that the court has allowed livestreaming of its audio and the first time that the court is hearing arguments via telephone hookup instead of in the flesh.

The justices are trying to simulate their normal arguments as much as possible, beginning with Chief Marshal Pamela Talkin calling the court to order with a slightly modified version of her usual "Oyez, oyez, oyez ...."

After that, very little will be as usual.

Because the arguments are conducted over the phone, the justices and the lawyers cannot see one another, and listeners will all try to imagine where the justices and lawyers are sitting or standing in their homes to hear or present arguments.

While most of the lawyers will be in their homes, the government's lawyers will be making their arguments from the office of the solicitor general. And, in a bow to formality, they plan to wear their usual formal morning coat attire.

The lawyers we sampled, to a person, said they are more comfortable standing, or even standing at a lectern, as they usually do during oral arguments, even though nobody can see them. The arguments are limited to a half-hour on each side. And, as usual, each side will get to make an opening argument for two minutes uninterrupted.

After that, under normal circumstances the justices engage in rapid-fire questioning of the lawyers — interrupting counsel frequently, and even each other on occasion.

But starting Monday, the justices will ask questions in order of seniority, for two or three minutes each, with Chief Justice John Roberts starting off, followed by Justice Clarence Thomas — if he has any questions, which he rarely does. (If Thomas asks a question, it will be the first time he has spoken from the bench in over a year, when he broke a three-year silence, which was preceded by a whopping 10-year silence from the bench.)

Next, Justice Ruth Bader Ginsburg, who often asks the first question in oral arguments, will be at bat, and so on, ending with the court's newest appointee, Brett Kavanaugh. More questions will be permitted if there is time left at the end of the first round of questioning.

Lawyers say there will be big challenges with the new format.

"You lose the ability to read body language. That's No. 1," says Jay Sekulow, who will be representing President Trump in cases testing whether the president can be subpoenaed for his pre-presidential financial records either by Congress or by a state grand jury subpoena in a criminal case.

As Sekulow observes, oral argument is typically a "pretty intimate event when you're actually arguing in the courtroom. You see them. You can see their reactions. You see if they nod to each other. Here you're doing this literally over a telephone line. So you lose the intimacy."

Stanford Law professor Jeff Fisher, who will be arguing a religion case a week from Monday, agrees. "I just feel that not being able to see their faces and body language is going to be a real challenge. It's just a cost for how effective and useful the arguments are going to be."

The audio argument format presents another interesting twist for the court: For the first time ever, oral arguments will be available via livestream. Typically, Supreme Court arguments are followed by a narrow group of lawyers, law students and court watchers. But with millions of Americans stuck at home, and arguments carried live online and on C-Span, the justices will likely have a larger audience than usual.

Monday's case presents a trademark question — not exactly the kind of thing to rivet public attention. And it is the only case of the day. Clearly, the court is using this relatively unimportant case to see how the system is working and whether it needs to be adjusted in any way — in short, to work out the bugs.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.