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Former Deputy SG Says Justices 'Stepped Up' In Historic Term

By Jimmy Hoover
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Law360 (July 23, 2020, 4:53 PM EDT) -- By navigating a minefield of politically explosive cases amid the coronavirus pandemic, the U.S. Supreme Court "stepped up to the moment" by maintaining a semblance of normalcy during the global health crisis, says veteran high court advocate  and former deputy solicitor general Michael Dreeben.

Dreeben, who recently joined O'Melveny & Myers LLP after logging 105 Supreme Court arguments over 30 years working for the U.S. solicitor general's office, reflected on the court's historic term in a recent interview with Law360. He praised the justices for their efforts during the pandemic to work through the their docket of major and politically charged cases — including by holding their first teleconference oral arguments and making them available live to the public.

The attorney noted the court's "heroic effort" to maintain normalcy during the global health crisis, though he admitted the result was "not perfect,"  adding that teleconference oral arguments are "no substitute" for the real thing.

"The court stepped up to the moment and displayed remarkable flexibility and versatility," Dreeben said. "The court had to step into a new role in conducting oral arguments without seeing the advocates and without seeing, at least as far as the public knows, their colleagues while they did it."

Dreeben knows the Supreme Court like few do. As deputy U.S. solicitor general, he was in charge of the criminal docket at the Supreme Court for more than a quarter-century and earned respect from the nation's top bench for his deep expertise and methodical approach to cases.

For the last two terms, however, Dreeben has been conspicuously absent from the courtroom. In the last major assignment of his government career, he took leave from the solicitor general's office to work for former special counsel Robert Mueller's investigation into Russian interference in the 2016 presidential election. Dreeben left government a year ago and became a distinguished lecturer at the Georgetown University Law Center before joining O'Melveny in December.

However, Dreeben has still kept a close eye on the Supreme Court during its historic 2019 term, which was rocked by the coronavirus pandemic. The court canceled its March and April argument sessions and, for the first time ever, held telephonic arguments that were broadcast live to the public.

Recognizing that its usual "free-for-all" oral argument format would be unworkable in teleconference proceedings, the court announced that the justices would ask questions in order of seniority, with Chief Justice John Roberts Jr. going first.

The new format resulted in more equal speaking time between the justices, as Justice Roberts enforced time limits on his colleagues' questioning to keep the proceedings on schedule. Justice Stephen Breyer, who normally is the most talkative during oral arguments, spoke significantly less, while the perennially silent Justice Clarence Thomas asked questions of each arguing attorney.

Although the new process was more orderly, Dreeben thinks some substance was lost.

"The chief justice did an admirable job of organizing a sequence of questioning, but the process was not perfect," Dreeben said. "I went back more recently and listened to some of the arguments earlier in the term in the live format and noticed a remarkably striking difference in the court's ability to penetrate to the heart of the case through interactive questioning that was not as structured and was more spontaneous."

The live arguments "allowed greater opportunities for interaction between the justices and for the justices to read each other's questions and capitalize on moments to find agreement, expose weaknesses [and] drill down to the core propositions on which a case turns," Dreeben said. "Ultimately, while the sequential format was a heroic effort to maintain the court's traditional transparency in its flow of questions and answers and its accessibility in exploring the nuances of the case, there was and is no substitute for the live-format interaction." 

But there was one aspect of the court's teleconference hearing that Dreeben wouldn't mind applying to all arguments going forward.

"I hope that the court does conclude that live or nearly live broadcasting of an oral argument is a positive and nonthreatening means of communicating what the court does," Dreeben said. "I think that the more that the court is able to show the public how it does its work, as well as its final product, the more the court's prestige will rise in the public mind."

The Supreme Court's public image, of course, was damaged by the bitter fights over the nominations of Merrick Garland and Brett Kavanaugh, with many seeing the institution as simply an extension of party politics. A string of 5-4 conservative victories during the 2018 term led to increased calls among progressives to "reform" the court.

But Dreeben said politically motivated court reform efforts are short-sighted.

"Changing the number of justices because of a desire to change outcomes along preferred partisan lines is really inconsistent with the idea behind the judicial branch in the first place," Dreeben said. "I would urge taking a long view about the role of the court."

Dreeben said that the 2019 term produced some surprising results, showing that the court is not just an extension of partisan politics. Indeed, in several explosive cases, one or more Republican appointees joined with the court's liberal wing to deliver major victories for LGBTQ rights, immigrants who arrived to the country as children, abortion access and more.

"I think it is a very positive and remarkable feature of our government that we have a judicial body that plays a different role than the political branches," Dreeben said. "It's important to keep those kinds of things in mind and really treasure what a jewel it is to have a Supreme Court that is respected around the world for its integrity and its rigor of analysis."

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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