What We Learned From Supreme Court's First Telehearings

By Jimmy Hoover
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Law360 (May 15, 2020, 9:44 PM EDT) -- A few bloopers notwithstanding, the U.S. Supreme Court has emerged unscathed from the uncharted waters of teleconference hearings and livestreaming prompted by the coronavirus pandemic. Here's what worked and what didn't, according to the attorneys who were along for the ride.

Over the course of 10 hearings this month, the justices braved their way through mute-button mishaps, an unexpected toilet flush, and the live-tweeting of thousands of attorneys, journalists and court watchers tuning in to the first-ever remote argument session in the court's 230-year history.

"An unmitigated success" is how Lisa Blatt of Williams & Connolly LLP described the session to Law360. Blatt argued the first case on May 4, USPTO v.

"Obviously, the court should retain live coverage so the public can hear how impressive the justices are in doing their work," Blatt said.

The remote session began with a debate over the intricacies of trademark law, but the justices also tackled some hot-button cases, including the clash over subpoenas for years' worth of President Donald Trump's business and tax records. Throughout the hearings, the general public enjoyed a virtual front-row seat to the justices' active style of questioning attorneys on the fine points of the law.

"The court facilitated a robust exchange in every case, allowing the justice[s] to flag their questions and concerns, and giving the advocates a fair opportunity to respond," said Roman Martinez of Latham & Watkins LLP, who argued on May 6 in Barr v. American Association of Political Consultants Inc.

The hearings also marked a dramatic change from those held in open court.

Yes, there were the hiccups one would expect from adopting new technology. Justices routinely fumbled with the mute button when it was their turn to ask questions, and the sound of a toilet flush could be distinctly heard over the argument of one attorney.

But the court also abandoned its usual free-for-all style in favor of a new format where the justices asked questions in order of seniority. After an advocate had given their two-minute opening presentation — which the court only started allowing this term — Chief Justice John Roberts would have the first opportunity to ask questions, followed by the associate justices from longest-serving to newest.

Perhaps the most surprising result of this new format was that Justice Clarence Thomas, who is typically silent during arguments, asked questions throughout the session when it was his turn to speak. Justice Thomas, who hadn't asked a question for a year before the first teleconference argument, has explained his customary silence by referencing the active questioning by his Supreme Court colleagues, as well as his childhood experience being the only black student in a virtually all-white school and being made fun of for his Geechee dialect.

In a fitting end to the surreal session, Justice Thomas' last question dealt with the prospect of a rogue presidential elector writing in Frodo Baggins, the short-statured protagonist from J.R.R. Tolkien's "The Lord of the Rings" trilogy on their ballot.

"The elector who had promised to vote for the winning candidate could suddenly say, 'You know, I'm going to vote for Frodo Baggins. I really like Frodo Baggins,' and you're saying under your system, you can't do anything about that," he said.

Blatt said Justice Thomas and Justice Elena Kagan "stole the show."

"They had the best telephone voices: clear, crisp and diving right to the heart of each case," she said.

But while Justice Thomas appeared to like the new questioning format, court watchers and media commentators saw downsides.

Justice Roberts frequently had to cut off his colleagues during their questions in order to keep the proceedings on schedule — although even those interjections didn't stop some hearings from stretching more than 30 minutes over their allotted hour.

"This harms equal status of each Justice, gives the [chief justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, looks amateurish," tweeted veteran journalist Lyle Denniston, who covered the Supreme Court from 1958 to 2016.

Seasoned advocates also struggled with the format. Jeffrey Fisher, the co-director of Stanford Law School's Supreme Court Litigation Clinic, said it felt like there was no opportunity to circle back and emphasize certain points to win over a justice whose vote might be pivotal.

"Where each justice has a specified chunk of allotted time, you feel obligated to stick to the specific questions that [justice] raises, and if you're unable fully to address a justice's concerns during that module, the opportunity is lost," he said. Fisher argued May 11 in a pair of consolidated cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, about the scope of a legal doctrine that shields religious employers from anti-discrimination laws.

With the teleconference session now complete, the Supreme Court enters the final stretch of its term, when it must hand down rulings in the dozens of pending cases that have been argued. For many, it's still unclear whether the court's brief experiment with livestreaming and teleconference technology is just that, a brief experiment, or something with more longevity.

It's possible that the court will have to continue telephone hearings when it gavels back in October if public health officials haven't yet deemed it safe to allow hundreds of people to cram into the courtroom for its usual argument hearings.

But the justices will also have to make a choice on what to do after the pandemic: Go back to their old ways of delaying the release of argument recordings for several days or continue into the brave new world of livestreaming.

"Having live audio provided a nice opportunity for our clients and colleagues to listen to the argument in real time, but we appreciate that the court needs to consider a wide range of institutional and other factors in deciding how best to conduct its proceedings in the aftermath of the pandemic," said David Bowker of WilmerHale, who argued on May 5 in USAID v. Alliance for Open Society International Inc. et al.

--Editing by Aaron Pelc and Jay Jackson Jr.

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