A NEW ERA AT ONE FIRST STREET

(Posted May 5, 2020) Even those who don’t follow appellate developments closely have seen the news that the Supreme Court of the United States has, for the first time in its history, received oral arguments by telephone this week. The Court took this step because several of the cases remaining on the argument docket are time-sensitive, including a couple that may affect the 2020 presidential election. Here are a few key points about this historic event.

Normal oral arguments can result in a questioning traffic jam when several justices try to speak at once, and Justice X interrupts before the advocate finishes answering Justice Y. The justices are often trying to score debating points with one another instead of truly seeking information from the lawyer, who sometimes looks on as an innocent bystander.

Not this week. The Court has adopted a one-by-one convention for questions. Each advocate gets a certain amount of time – maybe three minutes – to make opening remarks. The justices then – get this – take turns asking questions, by order of seniority. That means the chief justice starts, followed by the next most senior, on down the line to the juniormost member of the Court, Justice Kavanaugh. After that, each advocate gets another 2-3 minutes before sitting down.

One fringe benefit of this arrangement for advocates is a relaxed timer. Previously, the Court enforced the clock (30 minutes per side) fairly strictly. I understand that yesterday’s argument consumed about 75 minutes, with each advocate getting roughly half. The Court may have reasoned that the format justifies a little temporal leniency.

Remember that “next most senior” part? Well, guess who’s second in line, according to tenure? It’s Justice Thomas, that Court’s famously closed-mouthed Robe. Before this week, he has asked questions perhaps once in almost 15 years. But yesterday, he waded in with questions for both sides. What gives?

I can actually answer that. Justice Thomas is the only member of the Court I’ve met; I got to shake hands with him and we chatted just long enough for me to conclude that he’s extraordinarily gracious. He gave a short speech at the event I attended (it was an ABA Summit several years ago) in which he related his first appellate experience as a young lawyer arguing in the Missouri court system. He was nervous going in, but the panel let him give his speech without interruption.

The young advocate was so relieved at that forbearance that when he became an appellate jurist, he vowed to return the courtesy. He accordingly allows lawyers to speak without interrupting them. (Side note: This approach is a nice accommodation for appellate newbies, but veterans are silently begging to be interrupted whenever they rise to argue. We don’t want to give a canned speech; we want to know what’s bothering the consumer about our arguments, so we can address those concerns. But I digress.)

Hence my effort to read between the lines – I believe that Justice Thomas spoke up yesterday because the format was specifically designed for those questions. He wasn’t interrupting anyone.

Next item: I’ve read that of the ten arguments scheduled for this week and next, the Solicitor General’s Office will argue in perhaps as many as nine. That prompts a sartorial question: Will there be a morning coat?

The ancient tradition in SCOTUS is that in any appearance by a male lawyer from the OSG, the lawyer appears in formal wear. And since it’s long before evening, too early for a tuxedo or a white-tie outfit, that means a morning coat. But why wear one for a telephone call? None of the Robes could see the lawyer, so it would seem to be a useless gesture.

Ah, but this is the tradition-bound Office of the Solicitor General of the United States, the only government official who, by statute, must be “learned in law.” See 28 U.S.C. §505. (His boss, the Attorney General, can be a high-school dropout, as far as the Code is concerned.) According to what I’ve read, yes, the Deputy Solicitors arguing this week and next are appearing for their telephonic arguments dressed just the way they always do.

This prompts a side note about arguing to the Supreme Court of Virginia. Those arguments, too, are by telephone, so you won’t be visible to anyone. Even so, when I argued three merits appeals to the SCV last month (and one writ argument before that), I wore a suit. It reassured me that I’m a lawyer arguing an important case. I don’t own a morning coat, so that option was out.