Why it matters that Supreme Court justices can look each other in the eye again

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Supreme Court justices are talking to each other again.

For the first time since March 2020, they held oral arguments in person this week. As the justices sat elbow-to-elbow on the elevated bench, shed of the telephonic constraints, their interactions were more pointed, their hypothetical scenarios more vivid. Justices exchanged glances, gestured in support and grimaced in disagreement.

Oral argument sessions offer an obvious forum for dueling lawyers to present their cases. But they also give the justices their first opportunity to persuade each other on the merits of a dispute. They make points through their questions or interjections, following up on colleagues’ queries to a lawyer at the lectern. Sometimes justices swoop in to bolster an advocate’s point, sometimes to undercut it.

The spontaneous give-and-take better reveals the justices’ views than the pandemic-alternative teleconferences used over the past year and a half. From their remote locations, the justices largely adhered to a formulaic order of seniority and individual time limits.

Justice Stephen Breyer said he was glad the court had returned to its usual in-person routine. “There are enough things that make it not human,” he said at a Smithsonian Associates event on Monday night, referring to court arguments, “and having one that makes it more human is a definite advantage.”

More human interaction, to be sure, but a return to the courtroom also revives the chance to joust with each other, through questions addressed to the lawyers.

That difference was evident on Tuesday when Justice Samuel Alito posed a scenario to lawyer Jeffrey Fisher, representing a New York murder defendant who claimed his rights under the Sixth Amendment confrontation clause had been violated when certain witness testimony was used against him.

Alito suggested the defendant had waived his rights as he “opened the door” to the testimony at trial. Rejecting Fisher’s defense, Alito sketched a situation involving testimony that could be both helpful and harmful, exculpatory and incriminating. He suggested a defendant would seek to introduce the beneficial part and exclude the rest.

“You think that a trial could entertain that travesty, where the exculpatory part of a statement is introduced — that’s permitted — but the inculpatory part is not introduced,” Alito asked.

Fisher protested that it was unlikely a judge would allow such partial testimony and began elaborating when Justice Elena Kagan interjected: “That goes beyond this case, doesn’t it, Mr. Fisher?”

“Far beyond,” Fisher agreed.

“We don’t have to touch that, do we?” Kagan added, appearing to try to keep the criminal case narrowly focused. “Why should we touch it, I suppose? Why are you even arguing it?”

“I’m just answering Justice Alito’s question,” Fisher said.

Alito then reinforced his point: “We take cases for the most part to decide important legal questions and not just to determine whether there was an error in a particular criminal trial in the Supreme Court of New York for the County of the Bronx, right?”

The rejoinder was spoken to Fisher but plainly addressed to Kagan, sitting just to his right on the bench.

The justices also raised a set of questions that seemed unlikely to have come up by telephone. In a dispute involving a former associate of Osama bin Laden who was tortured at a CIA detention “black site,” Justices Breyer, Neil Gorsuch and Sonia Sotomayor built on each other’s queries to ask why Abu Zabaydah was still being held in Guantanamo Bay and unable to testify about his treatment abroad.

Acting US Solicitor General Brian Fletcher told the justices he would follow up on the issue.

In a separate case, Kagan was able to promptly urge lawyer Allon Kedem to clarify his response to a question from Justice Clarence Thomas. Under the teleconference format, she would have had to have waited through questions posed by three more senior justices.

The issue was whether burglaries from ten units at a Georgia mini-storage facility one night fell under a law requiring a 15-year mandatory-minimum sentence for prior offenses committed “on occasions different from one another.”

Thomas asked the defendant’s lawyer how the word “occasions” should be analyzed, if it was a matter of timing. He expressed frustration as Kedem answered.

“You’re still not getting to the point,” Thomas said. “What if they took a smoke break? What if they decided to have lunch? What if they said, look … we’ve got lots of time. We can go to Starbucks, grab a cup of coffee or something like that, actually, Dunkin’ Donuts and get a cup of coffee or something? And they stay for an hour or two. Is that enough of a break? I’m just trying to figure out what you think a break would be to break up the continuity.”

Kagan pushed lawyer Kedem to be clear.

“You answered Justice Thomas first by saying it’s not only or even primarily a matter of time,” Kagan said, “and then, within two sentences, you said the question is whether there’s a continuous stream of activity, which does seem like it’s a matter of time. So isn’t it at least primarily a matter of time? … I think what Justice Thomas might have been responding to is just a feeling that this is a very loosey-goosey test, you know, that it’s an all things considered, totality of the circumstances.”

“I do think that the statute actually calls for a qualitative standard textually,” Kedem responded, “and that’s from the phrase ‘different from one another,’ which is just not a phrase you ever use to refer to things that are discrete, like times of day…. It is going to be context-specific … .”

Changes to the courtroom and habits

This inaugural week of arguments for the 2021-22 session lacked the high-profile, broadly watched cases testing gun-control regulations, to be argued in November, or abortion rights, to be argued in December. But the novelty of being back in the courtroom enticed special guests even to a water-rights dispute between Mississippi and Tennessee, the case first up on Monday.

Retired Justice Anthony Kennedy sat in a reserved box section to the justices’ left, as did spouses Jane Roberts, Joanna Breyer and Jesse Barrett (husband of newest Justice Amy Coney Barrett).

On the tall mahogany bench, Chief Justice John Roberts took his usual seat at the center, the associate justices to his two sides, alternating in order of seniority. To his right was Thomas, who has been a justice for 30 years, to his left was Breyer, at 27 years.

The justices, who are tested regularly for the Covid-19 virus, came unmasked, except for Sotomayor, who has spoken openly about having diabetes.

The nine were one short. The court last week announced that Justice Brett Kavanaugh had tested positive in a routine Covid-19 screening. He had been fully vaccinated since last January and apparently had no symptoms. Kavanaugh participated through a remote feed, interjecting questions throughout.

In the courtroom, law clerks, lawyers and journalists wore masks. As individual lawyers stepped up to the lectern, positioned about 20 feet back from the bench, twice as far as usual, they removed their masks. They replaced face coverings when they finished arguing and sat down.

Between cases, aides wiped down the lectern and replaced water glasses for the next set of lawyers. Also set anew on the counsel table were white quill pens, the traditional souvenir offered to lawyers who present a case at the nation’s high court.

By custom, the nine would shake hands before beginning those private sessions and before taking the bench. Now they rub elbows, Breyer said.

Before the pandemic, Thomas rarely asked questions during oral arguments, shunning the rapid give-and-take justices interrupted the lawyers and each other. But in the teleconference arguments that moved sequentially by seniority, Thomas regularly took his turn.

This week, Roberts quietly allowed Thomas to go first with his questions while the others waited. Once Thomas asked his questions to a lawyer, the other justices jumped in, irrespective of seniority, mainly following the lines of argument presented.

Hypothetically speaking

The return to the courtroom seemed to heighten the colorful hypotheticals. In the dispute over a sequence of criminal offenses, Kagan posited: “Suppose that there was a crime boss and he was a good multitasking crime boss, and he had a few phones in front of him. He’s sitting in his office one day, and on one phone he’s arranging a sale of illegal drugs and on another phone he’s ordering the killing of a competing crime boss and on another phone he’s involved in an illegal gambling operation. And they’re all going on very close in time to each other. Single occasion or three occasions?”

(Kedem said he thought he would be a single occasion but offered caveats.)

In the water rights case, Mississippi v. Tennessee, concerning an aquifer beneath those states and several others, Roberts posed a “wild horses” hypothetical.

“In the western states, they have these wild horses or wild burros, whatever they are, and they don’t obey the state lines and they’re wandering around. … If they were in Mississippi and crossed into Tennessee, and Tennessee seized them at that point, would that be damaging Mississippi, or could Tennessee say, look, they’re on our territory, they’re under our physical control, we can exercise dominion over them, period?”

Breyer, who picked up on the horse example during oral arguments and mentioned it later at the Smithsonian Associates event, said that under the limited teleconference format, Roberts might have avoided the hypothetical.

But Roberts had been able to probe the substance of the water-rights controversy with other lines of inquiry first.

Said Breyer, “He might not have said that it if he knew that would be the single question that everybody would focus on.”

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