Were the Supreme Court’s Phone Arguments a Success?

WASHINGTON — The Supreme Court has gotten a fair amount of praise for the way it adjusted to the coronavirus pandemic: hearing arguments by conference call, with the justices asking questions one at a time in order of seniority, and the public allowed to listen in.

The 10 arguments the court heard over the past two weeks were orderly and dignified, and some people thought the new format was a significant improvement over the unruly free-for-all that characterizes oral arguments in the courtroom. There were few glitches, putting aside what certainly sounded like a flushing toilet, and the questioning was characteristically sharp and subtle.

But there was a notable dissent, and it came from an observer with exceptional qualifications. Lyle Denniston, who has attended more Supreme Court arguments than any other journalist and quite possibly more than anyone alive, issued a bill of particulars objecting to the new format after the second conference-call argument.

He was particularly critical of the role Chief Justice John G. Roberts Jr. assumed, cutting off his colleagues’ questioning in an apparent effort to keep the proceedings to the allotted hour. “This harms equal status of each Justice,” Mr. Denniston wrote on Twitter, “gives the CJ arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, looks amateurish.”

Mr. Denniston, 89, attended his first Supreme Court argument in 1958. Over the next six decades, he covered the court for The Wall Street Journal, The Boston Globe, The Baltimore Sun, Scotusblog and other news outlets until he more or less retired in 2017. He is now the dean emeritus of the Supreme Court press corps.

On the phone the other day, I asked Mr. Denniston whether there was anything valuable in the new way of conducting arguments.

“It’s very hard for me to be charitable about it,” he said, “because I see so many flaws in it. The only virtue is that the court was publicly exhibited as it did its work. There is a civic value in that. But the process in terms of what we really need the Supreme Court to do, which is to resolve these dreadfully important constitutional and statutory and cultural questions, we just cannot have them doing it by a process that is so inherently flawed.”

The point of oral argument, he said, is to allow the justices to communicate with one another about how they see the case. The lawyers have their say in their briefs, he said, and the arguments are the start of judicial deliberations.

“My premise has always been that argument is for the court and not for counsel,” he said. “The justices use the arguments to try to influence each other or to try to gauge how each other is thinking.”

Two aspects of the telephone arguments, neither strictly necessary, frustrated that goal. One was having the justices speak in lock-step order. The other was trying to limit arguments to the usual hour, requiring the chief justice to cut off questioning.

“The chief’s role was much, much too heavy,” Mr. Denniston said. “He was regularly making a subjective judgment about when counsel had said enough or when a justice had asked enough. He was trapped in the mechanics of it. He was not only cutting people off midsentence, he was cutting them off in the middle of a thought.”

To be sure, allowing the justices to jump in whenever the spirit moved them risked cacophony. But the time limit could easily have been dispensed with, and justices could have been allowed to ask all the questions they wanted to, one by one.

Even with Chief Justice Roberts’s aggressive efforts, many of the arguments lasted 90 minutes or more. Letting them run longer would have addressed at least one of Mr. Denniston’s concerns.

By historical and many international standards, an hour for an argument in an important case is not much time at all. When Brown v. Board of Education, the school desegregation case, was first argued in 1952, the court sat for more than eight hours over three days.

“What is the strongest argument you can make for limiting a profoundly important inquiry to 60 minutes?” Mr. Denniston asked. “What is the magic behind 60 minutes?”

He did see one bright spot in the telephone arguments: They allowed the public to hear insightful questions from Justice Clarence Thomas, who ordinarily does not participate in arguments held in the courtroom.

“I am one of the very few, particularly in the media, who have long been impressed with the depth, learning and originality, and the juridical quality, of Clarence Thomas’s work,” Mr. Denniston said. “And I have always thought that the public perception of him was almost to the point of tragic because Clarence Thomas is a much, much better Supreme Court justice than his silence has invited people to conclude.”

I asked Mr. Denniston whether the court could retreat from allowing live audio coverage of its arguments once things returned to normal. Sure, he said.

“There will be no change whatsoever,” he said. “I fully expect that if the pandemic allows them to be on the bench in October, we won’t see one bit of difference.”

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