Lat on Supreme Court telephonic arguments

It’s so great to have David Lat back with a guest post at Above the Law — not only because it’s a sign that he is recovering from his serious COVID-19 scare a few weeks ago, but also because he always adds desperately needed sensibility to a blog that has become virtually unreadable since he handed over the full-time reins years ago.

Lat comments on the recent round of telephonic oral arguments at the Supreme Court, and in particular the Justices’ stringently ordered questioning. Some prominent commentators have criticized the regimented process, arguing that it prevents cross-discussion and gives to much power to the Chief Justice, who acts as the moderator. But Lat points out that a more carefully ordered structure also has its advantages, and even notes that there is ample room for some middle ground:

Evidence that the new approach promotes rather than reduces equality among the justices: the active participation of Justice Clarence Thomas, who in the past has rarely asked questions during oral argument, but who used the more orderly format to raise a number of excellent and incisive points. The old format gave an unfair advantage to the most aggressive and obstreperous justices, while disadvantaging someone like Justice Thomas, a self-described introvert, as well as the female justices, who were frequently interrupted by their male colleagues. In other words, the new format is more fair to justices who aren’t white males.

But there is, as is often the case at SCOTUS, some room for compromise. My proposal (which I previously floated on Twitter): have one round of questions moderated by the Chief Justice, where each justice gets to have a say, then devote the remaining time to unstructured questioning.

Yes. Even with an institution as tradition-oriented and “small-c” conservative as the Supreme Court, there is a good chance that some of the changes necessitated by the coronavirus will stick when the pandemic is over. Lat offers good suggestions that the Supreme Court might well wish to take into account.