The return of virtual SCOTUS
on Oct 12, 2020 at 3:00 pm
Amid an ongoing pandemic, the recent death of Justice Ruth Bader Ginsburg and a looming confirmation battle, the eight justices of the Supreme Court began a new term last Monday. SCOTUStalk host Amy Howe sits down with SCOTUSblog media editor Katie Barlow to discuss the first week of the term, including an apparent procedural tweak to telephonic oral arguments and which justice is now handling emergency appeals from the U.S. Court of Appeals for the 2nd Circuit (Ginsburg had been the “circuit justice” for the 2nd Circuit).
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Intro: [00:00:00] Oyez! Oyez! Oyez! This is SCOTUStalk, a non-partisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
Amy Howe: [00:00:13] Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us. The Supreme Court wrapped up the first week of its new term, kicking off its second remote sitting because of the coronavirus pandemic. Joining me to discuss the new term and the first week of oral arguments is SCOTUSblog’s media editor, Katie Barlow. Katie, thanks for joining us.
Katie Barlow: [00:00:34] Thanks for having me, Amy. I have several questions for you. It was a busy week.
AH: [00:00:39] It was indeed. Both inside the virtual courtroom and out.
KB: [00:00:45] So let’s just start off with the fact that eight justices are doing the work of nine right now. We have eight justices on the court. There’s one seat open from the late Justice Ruth Bader Ginsburg…has yet to be filled, although the GOP is actively working on it as we speak. It’s not new, right, that the court in 2016 and 2017, I think, went for about 16 months with with eight justices doing the work of nine. And even in an election year, even first Monday in the first week, they’ve all done before. But it’s still a lot of work for a body that usually functions with nine. What struck you about the eight justice court this week?
AH: [00:01:24] So you didn’t so much see it at oral argument. You know, it was sort of jarring not to see…well, not to hear Justice Ginsburg at the oral argument. Though, with the format that they’re using, the oral arguments are still running quite long because each justice gets a specific amount of time. And by the time they run through each of the eight justices, the arguments that are supposed to be an hour are running more like eighty five minutes.
AH: [00:01:55] But we really did have, I think, a good example. And I should say that, you know, justice, some of the justices during the 16 month stretch when they had an eight member court, some of the justices actually went to the went stressed publicly that they thought the Supreme Court was functioning well with eight members. I know that Justice Stephen Breyer was one of those justices.
AH: [00:02:23] And we had a good example on Thursday of why there are nine justices or at least why there is an odd number of justices on the court. Back at the end of August, the Trump administration filed an emergency request on behalf of the Food and Drug Administration to reinstate a federal requirement that a pill used to induce abortion during the early stages of pregnancy be picked up in person. A group of physicians had challenged this requirement, saying that that women shouldn’t have to go to the doctor’s office during the pandemic. And the argument was that it placed a substantial obstacle in the path of women seeking abortions.
AH: [00:03:06] And a federal district judge in Maryland agreed and put that requirement on hold. Nationwide, the Fourth Circuit did not step in and said the Trump administration came to the Supreme Court at the end of August. The Supreme Court called for a response from the physicians and the the stay request — the request to put the judge’s order on hold — was fully briefed by September 8th. And then we waited, and we waited and we waited. And finally on Thursday, October 8th — so a full month after all of the briefing was done — the Supreme Court finally acted. And to use the legal term that my friend Steven Mazie of the Economist, used on Twitter, they punted, so to speak. They didn’t grant the request. They didn’t deny the request. They said to the government, you say that the judge’s order is too broad. We really need more information to decide that. So you can go back to the district court and you can ask him to lift or modify or freeze the order. Perhaps provide more information about why in some parts of the country, maybe the covid rates are not so bad that women couldn’t come into the offices and the district judge should rule within 40 days. And so they sort of kicked the can down the road, at which point, presumably there will be another justice on the Supreme Court and the government can come back and we can do this all over again.
AH: [00:04:40] And it reminded me of 2016, a case called Zubik v. Burwell. It was a challenge to the accommodations that the Obama administration was offering for the birth control mandate. And the argument was that even filling out the form to ensure that your female employees had access to birth control itself was a violation of the employer’s religious beliefs and the Supreme Court granted review and then Justice Scalia died before they heard oral argument and after the oral argument, they essentially sent the case back to the lower courts and said, you know, you all can work this out.
KB: [00:05:19] That’s a great comparison. That reminds me of a reader question…a listener question that we got that also happened when Justice Scalia passed away in February 2016. That kind of highlights that the court, at least the nine justices, have certain responsibilities, not just with writing opinions and oral argument, but each justice is responsible for emergency stay applications for the circuit courts. And Justice Ginsburg was assigned to the Second Circuit. And you and the rest of the Supreme Court press corps have been covering tons of emergency requests that are happening related to the election, and not, over the summer. But what happens to the Second Circuit? Who’s covering that now?
AH: [00:06:02] So I was today years old when I learned that there is a rule for this. The Supreme Court has a rule for many things. And when the justice is not available, then the stay application goes to the justice who is below that justice in terms of seniority. And I actually learned this just a couple of hours ago, I’d actually gotten an email question from a reader about this and had looked it up and Justice Ginsburg is still listed on the court’s website as the circuit justice for the 2nd Circuit. The justice who was confirmed next after Justice Ginsburg was Justice Stephen Breyer. And sure enough, you can see on the court’s docket that a stay application has come in out of the 2nd Circuit and Justice Breyer was the one who denied it.
AH: [00:06:56] I actually thought he was doing it just to be helpful in this. But it turns out and I’m sure he would have done it just to be helpful and nice, but there’s actually also a rule about it.
KB: [00:07:04] It’s his job!
AH: [00:07:05] It’s his job. I thought it was because the First Circuit for which Justice Breyer is the circuit justice is not a particularly busy place normally.
KB: [00:07:16] The fact that there were eight justices last week was was one thing that was abnormal, strange, different to the start of the turn. The other thing which has been true since March is covid is still a huge part of everyday life. And the justices continued their remote oral argument sessions and we saw that last week for First Monday and the first week. And now we know that the justices in the Supreme Court will continue to hear arguments remotely at least through the end of this calendar year. So how do you think they’re settling in with that format? And what do you think’s going on behind the scenes with the justices?
AH: [00:07:57] So it is interesting that they do seem to be settling in. There seem to be fewer issues with the justices sort of having having difficulty with the mute button the way they had in the May session. There were the occasional issues with the audio of Deepak Gupta, who argued on Wednesday, who had problems in which his line cut off automatically. And so there was a problem that the chief justice called on him and his line had just cut out. So there was a second, but everybody kind of rolled with it very well. The chief justice said, “We’re going to take a break for a moment.” And being the chief justice, he had a nice little quip when the audio was restored, you know, “I thought maybe you wanted to rest on your briefs” or something like that. And Deepak, to his credit, didn’t seem to be fazed by it. I think everyone else would have had your heart in your throat, panicking, but it it all seemed to go fairly seamlessly.
AH: [00:09:01] You know, the other thing that sort of struck me going back, listening and then looking at some of the transcripts, the chief justice during the May session was the main timekeeper. And it seems more like and I don’t know whether they are communicating by email or on Zoom or something like that, that they are all keep more or less keeping their own time because it’s much more likely for you, for you to hear when a justice’s time is finished, to hear that justice say to the lawyer who’s arguing, thank you, Mr. Gupta, thank you, Mr. Goldstein, during the Google v. Oracle argument. Whereas the chief justice was really the one doing all of the time keeping in May. And I don’t know whether this was because he took a lot of flack during the May session. There were accusations that he was cutting off the female justices more often than the male justices, and so he wanted to sort of just cut that one off at the pass, but they do all seem to be keeping their time more often.
AH: [00:10:07] The other thing I think Lyle Denniston came on our podcast this summer and was not a big fan of the oral argument. I think Lyle continues to to not be thrilled with the format. I will say that as someone who covers oral arguments, you not only obviously you can’t see their faces, we would love to have video released so we could see their faces and their body languages. But when everybody has equal time and, so far, everyone has asked questions and no one has passed on their opportunity to ask questions…it’s a lot harder to read the room as a reporter and to try and figure out which way an argument might be going.
KB: [00:10:50] That’s a great point. I saw that Lyle also took issue with what seems like maybe the justices have agreed to pursue kind of one line of questioning, maybe, and maybe we need more data points to to see if that’s happening. But he also complained of of that. But now I’m imagining that the justices are all just coordinating behind the scenes. Maybe they’re all in a group chat or have a Slack going so that they can tell each other when to when to stop talking and move on.
AH: [00:11:18] I would love to think of the justices on slack but I’m a little skeptical I gotta say, Katie.
KB: [00:11:23] SCOTUS Slack! It works!
KB: [00:11:28] Ok, so the final thing that is also playing in the background while all of this is going on is the GOP is working quickly and efficiently to confirm a replacement for Justice Ginsburg in Judge Amy Coney Barrett. And the confirmation hearings are this week. And the court, like the rest of us, seems to be thinking it’s a bit of a foregone conclusion at this point. They seem to be awaiting the ninth justice imminently, so to speak. What do you think about that?
AH: [00:12:00] I think that’s probably right. I mean, they have not reassigned the circuit justices yet. Just as I mentioned, Justice Ginsburg is still on the list. There was more of a gap after Justice Kennedy retired. And as I recall, they reshuffled them once and then reshuffled them again when Justice Kavanaugh arrived on the court. But who knows? Tomorrow they’re going to go and reshuffle the circuit justices just to make me look bad. But, you know, they haven’t reshuffled the circuit justices. You know, they took a big voting rights case out of Arizona on the long conference. So they’re sort of charging ahead. Not really afraid to take on controversial cases. You know, on the other hand, there is an abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization, that was originally scheduled for the long conference on September 29th, and they’ve now rescheduled it twice. Does seem like perhaps they think that they’re going to have a ninth member soon.
KB: [00:13:01] That squares with what you said in our last episode, that perhaps the justices might be a little hesitant to grant certain cases or even grant more cases until they have a full bench, which seems more likely than not, sooner rather than later. So we’ll certainly see.
KB: [00:13:14] Well, that’s it. That’s all we have for you this week. It’s going to be another busy week. Thank you for for teaching us, as always.
AH: [00:13:23] Oh, thanks. Thanks for coming on.
Outro: [00:13:28] That’s another episode of SCOTUStalk. Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team, Katie Barlow, Katie Bart, Kal Golde and James Romoser.
