By Lisa Soronen
Beginning this week for the first time ever the U.S. Supreme Court is holding oral argument over the phone and allowing the public to listen in live. Today’s argument in Little Sisters of the Poor v. Pennsylvania illustrates the myriad ways live phone argument is different from the traditional in-person version.
Other than Justice Clarence Thomas asking questions, Chief Justice John Roberts’s role is the most obvious difference between traditional, in-person argument and live, phone argument observed in this oral argument and the others earlier this week.
During in-person arguments, Roberts acts as an equal to the other justices when asking questions. In the phone arguments, presumably to keep them running smoothly, he is acting as a moderator. After the litigant makes a two-minute uninterrupted presentation, Roberts asks a question and then directs his colleagues to ask questions one at a time by seniority.
The argument today, as a result of being moderated in this manner, was less chaotic than usual where the justices frequently cut off the litigants—and each other—to ask questions. Relatedly, the argument in this case went way over the hour time limit which Roberts normally sticks close to. Two litigants argued for one side in this case. Instead of splitting 30 minutes between them, Roberts allowed all the Justices to question both litigants—which lasted longer than 30 minutes.
Thomas, who has been totally silent during nearly all the oral arguments of his nearly 30-year career on the court, has been asking questions of all the litigants in the new, live-audio format. That illustrates how this format has made the justices harder to read.
Particularly in more controversial cases, if a justice agrees with one side, he or she may not ask that side’s attorney any questions in oral argument. Or a friendly justice might ask the attorney for the side he or she supports a “softball” question. But in the argument today numerous justices, including Thomas, asked attorneys arguing for each side the same question. Unless a listener is familiar with a justice's perspective on the question or can tell from how the attorney answers it, it is difficult to know to which side the question is a “softball.”
Little Sisters of the Poor v. Pennsylvania is a complicated case involving whether the Trump administration lawfully expanded the Affordable Care Act contraceptive mandate’s conscience exemption. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting lower court authority to issue nationwide injunctions.
In a previous case, Thomas expressed skepticism toward nationwide injunctions. In a normal argument, if he ever asked questions—which he basically never did—only Thomas would have asked about nationwide injunctions.
In the live argument, Thomas asked the attorneys arguing for both sides about the merits of nationwide injunctions. To the attorney defending the lower court’s use of a nationwide injunction in this case, he asked (a presumably hostile) question about the history of nationwide injunctions. The attorney directed Thomas to the amicus briefs covering the subject. Only one amicus brief, other than the SLLC amicus brief, exclusively defends nationwide injunctions. The SLLC brief covers the history of nationwide injunctions at length (NCSL did not join the brief).
Finally, the new format creates a disadvantage for the junior justices who must ask questions after their more senior colleagues have already asked the most interesting ones. Specifically, in this argument, Justice Neil Gorsuch used one of his questions to allow the litigant to finish answering the last question he was asked.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.