Outside the U.S. Supreme Court, back when that was a thing. Photo by Diego M. Radzinschi/ ALM

The U.S. Supreme Court on Wednesday finished its sixth and final day of first-ever telephonic arguments with a few surprises and generally positive reviews. But did the virtual format affect the substance of the arguments and will there be any long-lasting effects?

The surprises included the full participation of Justice Clarence Thomas, the toilet flush heard around the country, and the knowledge that, like many of us, some justices forgot to unmute their phones at times. And the format had a definite impact on the tenor and substance of the arguments, according to several advocates who provided observations to The National Law Journal.

The justices heard 10 arguments over the two-week May session after postponing its scheduled March and April argument sessions because of the COVID-19 virus. They also moved 10 cases from those two sessions into the new term beginning in October.

The NLJ reached out to a handful of veteran appellate lawyers for their assessment of the arguments—the pros and cons, and everything in between. The lawyers provided thoughts on the dynamics and tempo of the phone sessions—and the benefit of hearing regularly from Thomas, who often did not ask questions back when arguments were held in open court.

What follows is a snapshot of what some leading advocates told us, lightly edited for length and clarity.

>> Sarah Harris of Williams & Connolly: "Although the phone setting and format has affected substance, this format is a surprising success. The biggest effect of the format is that the senior justices' questions end up framing the argument to a significant degree. By the time the junior justices get their turns, most of the probing big-picture questions have been asked, so the later questions often press advocates on prior questions or ask difficult hypotheticals to follow up on what's already been said. The net effect has been that advocates have had more opportunity to stake out their positions in this format and that the justices have more ability to drill down. That also means there is nowhere to hide and it's harder to dodge hard questions. If advocates give a weak answer early on, they can bet another justice down the line will keep pressing, whereas in the usual format, friendly justices can interrupt or divert the line of questioning more easily.  So if argument is like truth serum (as Lisa Blatt often likes to say), then I think this format delivers an extra dose. I have an argument this fall, so I will be especially eager to see if this format has longer-term effects even if they return to normal by then!"

Pratik Shah of Akin Gump Strauss Hauer & Feld on Nov. 10, 2015. Photo by Diego M. Radzinschi/ ALM

>> Pratik Shah of Akin Gump Strauss Hauer & Feld: "I see pros and cons. Besides the novelty of Justice Thomas' active participation, it is refreshing that the advocates are getting more of an opportunity to answer questions than before, without the whiplash-inducing interruption from other justices. But because the justices do not have the opportunity to piggyback on each other's questions immediately, or address each other through the normal back-and-forth, you lose some of the natural flow and dynamic that sheds further insight on their thinking. So, on balance, I look forward to a return to the good old days."

>> Sarah Harrington of Goldstein & Russell: "All in all, I think the telephonic arguments went better than expected. Compared to live arguments, it seems better in some ways for the lawyers and worse in others. Because the justices have to take turns asking questions, it is better for the lawyers because they have a chance to give a full answer to a justice's question without being interrupted by a different justice. In ordinary arguments, it is sometimes difficult to fully answer one justice's question before being taken down a different path by someone else. The telephone setting is more challenging for lawyers because there are no visual cues to let them know how their answers are landing. Also, the justices' inability to interrupt each other's questioning means the lawyers have less information about how many justices may or may not share a particular concern. Ordinarily, lawyers can glean some information from which justices ask a lot of questions of which side of the case. Because each justice has (in theory, at least) an equal amount of time for questioning, that potential source of information is now missing. I think everyone will be glad to return to in-person arguments whenever it is safe to do so. But given the current circumstances, the telephonic arguments were fairly productive (I would say, surprisingly productive)."

Beth Brinkmann of Covington & Burling. Credit: Diego M. Radzinschi / ALM

>> Beth Brinkmann of Covington & Burling: "The participation by Justice Thomas is a real benefit of the phone format. His questions to the advocates allow them the opportunity to address his concerns. It also means that the conversation can be expanded to take into account the issues he raises. One downside is the loss of the energy of the in-person argument when justices are interrupting each other to ask you questions because they are so engaged in debating the issues with you. The tempo of the phone arguments is more akin to the court before Justice Scalia joined, when there were many fewer questions so the arguments were orderly without interruptions, but less fun. In the end, however, the justices are going to pose the questions they want addressed in either format and will use the arguments to sharpen their views on the case."

>> Kelsi Corkran of Orrick Herrington & Sutcliffe: "I think the chief justice was wise to implement a more orderly format—it's hard to imagine how the traditional rapid-fire jostling could have worked telephonically. I found it more difficult to tell which way each justice was leaning, or at least more difficult to tell how strongly they felt about the case, but I liked that the advocates were able to get out more complete answers before shifting to a new topic. The format unquestionably gave the chief justice an enormous amount of influence over how the arguments proceeded. He decided not only when the advocates were done speaking, but also the other justices. But he was clearly being careful about wielding this power fairly and neutrally, particularly in the politically charged cases.

It's been a treat to hear Justice Thomas participating in argument—his questioning has been very insightful, often prompting follow-up questions by the more junior justices. It was really moving and reassuring to hear Justice Ginsburg speak so forcefully from a hospital bed in the contraceptive mandate case.

And I know I was not alone in getting choked up last Monday listening to two brilliant women advocates [Assistant to the Solicitor General Erica Ross and Williams & Connolly's Lisa Blatt] present argument in the first live broadcast of a Supreme Court sitting, especially after yet another term where women were dismally underrepresented at the podium."

Gregory Garre of Latham & Watkins speaking in Washington last year. Credit: Diego M. Radzinschi / ALM

>> Gregory Garre of Latham & Watkins: "On the whole, I thought the arguments showed the court at its best (and most human). It made me feel better to know that I'm not the only one to mistakenly mute myself on calls. And this format really showed the justices working together—as a court—to unravel cases. The tensions and sniping that sometimes surface at oral argument seemed to be absent. The biggest difference was the presence of Justice Thomas in not just questioning advocates, but setting the terms of debate. That was wonderful, and just confirms what all who practice before the court know—that Justice Thomas is a thought leader on the court whether he is asking questions at argument or not.

The seriatim format defused what likely would have been much more heated exchanges in the more contentious cases. And it was also interesting to see the justices have to ask questions of both sides in a case, instead of just lining up in more conventional blocs to hammer one side or the other. This made for more interesting questioning.

At the same time, the arguments seemed more two-dimensional than three-dimensional. One of the most challenging things about oral argument in the court is being hit from all different directions in wham-bam fashion. The new format largely eliminated that dynamic. It also made it harder for justices to pin down advocates with a series of questions or hypotheticals, which no doubt was helpful to the advocates, and perhaps frustrating to the justices."

>> Joseph Palmore of Morrison & Foerster: "The dynamic is markedly different. Each justice has had the opportunity to ask their own follow-up questions, which has occasionally allowed for more in-depth discussion of some topics. But much of the interplay among the justices has been lost—it's mostly been a series of freestanding Socratic dialogues."

>> John Elwood of Arnold & Porter Kaye Scholer: "While on balance I prefer traditional oral arguments because they allow any justice to get involved in a line of questioning one justice is pursuing, and to keep going with that line of questioning without real time limits, on balance I thought the in-sequence telephonic questioning was just as effective in allowing the justices to test the merit of the advocates' positions. And there are some things that seem preferable, such as making sure each justice has the opportunity to question each advocate—even the lawyers for amici, although it makes argument run long. And of course I enjoyed having Justice Thomas routinely question advocates."