SCOTUS building U.S. Supreme Court. Credit: Mike Scarcella / NLJ

The sound of a flushing toilet on Wednesday's telephonic arguments at the U.S. Supreme Court might go down as one of the most awkward moments for the federal judiciary in the virus era. But we're only weeks into the new world of closed courts, social distancing and Zoom happy hours, so there's still time.

These unmuted moments, of course, were certain to happen, as state and federal courts quickly embraced audio and video platforms to try to keep things moving amid the virus pandemic. The Supreme Court, in a historic first, agreed to hear arguments by phone in a handful of pending cases—and to provide real-time audio.

"It's unacceptable that people can't follow the simple instruction of the court to put their phones on mute," U.S. District Judge Jed Rakoff in New York said the other day at a hearing in his court that was marred by interruption from those listening on the other end. "Even a child could do that."

But this was the Supreme Court, where a barking dog, crying child or—as the case may be—a toilet flush are that much more unexpected. The New York Post splashed the news under this headline: "Mystery swirls after toilet flush heard on Supreme Court conference call." CNN's headline called out: "Supreme embarrassment: The flush heard around the country."

The first two days of real-time Supreme Court phone arguments were not without minor glitches—a justice who forgets to unmute before speaking is just like us, or one of our colleagues. "I'm sorry, chief. Did it again," Justice Sonia Sotomayor said on Tuesday after Chief Justice John Roberts Jr. called his colleague's name twice. The justices are asking questions in order, based on seniority. They know who's coming up. Time to unmute.

Latham & Watkins partner Roman Martinez was mid-argument on Wednesday, speaking with Justice Elena Kagan, when the sound of the flush happened. "Martinez said in an email the sound did not come from his end of the conversation," according to Reuters. Martinez, a former clerk to Roberts, was arguing on behalf of the American Association of Political Consultants in a case that challenges federal restrictions on robocalls.

The Supreme Court's press office hasn't issued any statement about the bathroom break, and the official court transcript of the argument is silent on the flush. But rest assured, there's a solid chance that the next time a justice is speaking at a law school, after law schools reopen, there will be a question about the flush.

Here's a look back at some of the more awkward, or cringe-inducing, moments at the high court in recent and not-so-recent memory:

>> Remember the time Justice Stephen Breyer's mobile phone rang during oral arguments in 2017? "Breyer and seatmate Justice Clarence Thomas shared a quick laugh about the incident. But it didn't fluster lawyer Neal Katyal, who was in the middle of answering a question," according to an Associated Press report. The Washington Post described the episode thusly: "The embarrassed-looking justice moved quickly to stop the sound, while some of his colleagues smiled and looked at the ceiling." Breyer had some other ringing issues Wednesday. When Roberts called on him in the robocall case at one point, there was silence on the other end. The chief, keeper of the master clock, moved on. Breyer later explained: "The telephone started to ring, and it cut me off the call. And I don't think it was a robocall." The transcript notes: "laughter." Breyer continued: "And we got it straightened out."

Noel Francisco U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi / NLJ

>> Not every mishap at the high court involves a phone, of course. Indeed, those are the rare moments. One more recurring problem involved names: lawyers mistaking Justice Ruth Bader Ginsburg for Justice Sandra Day O'Connor. "Every year Sandra and I served together, someone would call me Justice O'Connor because they heard a woman's voice," Ginsburg remarked in 2013. The arrival of Sotomayor and Kagan helped reduce—but not eliminate—instances of mistaken identity. In 2016, then-Jones Day partner Noel Francisco, arguing a big white-collar case, misidentified Ginsburg as O'Connor. "That hasn't happened in quite some time," Ginsburg said. Francisco, now the U.S. solicitor general, quickly apologized. "Justice Ginsburg—I am very, very, very sorry," he said. Ginsburg, by the way, participated in Wednesday's arguments by phone from a hospital. The court said Wednesday night she has been discharged after seeking treatment for a gallbladder condition.

>> In 2000, lawyer Joseph Klock, representing then-Florida Secretary of State Katherine Harris in Bush v. Gore, twice misidentified justices' names. He called Justice John Paul Stevens as "Justice Brennan," and he identified Justice David Souter as "Justice Breyer." Justice Antonin Scalia began his questioning: "Mr. Klock, I'm Scalia." Klock later said on the ABC News program Good Morning America: "I was so tired that I was happy I didn't call one of them Justice Gore. And I'm not really very good with names."

>> There must be something about solicitors general. Or just the fact they are the top appellate lawyer for the Justice Department and are always in court, well almost. In 1935, Stanley Reed, then-solicitor general in the Franklin Delano Roosevelt administration, fainted under a hail of questions from justices hostile to the New Deal. He recovered quickly and resumed the argument. In 1938, Reed eased into an apparently less stressful job; Roosevelt appointed him as a Supreme Court justice. Then-U.S. Solicitor Donald Verrilli Jr. was pilloried for some of the early pauses and throat-clearings in the 2012 Affordable Care Act arguments. "If the government loses, it's going to lose because of [the substance of] its case. Don Verrilli did a fine job," Goldstein & Russell's Tom Goldstein said at the time. Then-President Obama's reported first phone call after learning the news of the ruling—Obamacare would survive—was touching base with Verrilli.

>> In the December 1996 oral argument in Glickman v. Wileman Brothers & Elliott, Inc., a first-time advocate fervently argued against a federal government checkoff program that forced California fruit growers to pay for advertising they did not like. The lawyer went off into a tangent. Addressing Justice Antonin Scalia, he said, "You ought to buy green plums and give them to your wife, and you're thinking to yourself right now you don't want to give your wife diarrhea." Amid nervous laughter Scalia sputtered, "Green plums? I would never give my wife a green plum. I've never even seen a green plum." After the argument, some of his clients sued the lawyer, claiming malpractice, fraud, breach of contract and the novel tort of "failure to refer to a specialist."

>> And then there was that time in 2015 when Scalia was caught on a hot microphone—at the bench, inside the Supreme Court—as protesters sounded off. "Give them stiff, stiff sentences," Scalia said, according to a tape and transcript of the incident that surfaced in the prosecution of the protesters. Thomas chimed in with a reference to one of the demonstrators: "That's the same guy from last time." Other protesters rose up and were removed from the court. "Pretty soon we might have an empty room," Thomas said.

Demonstrators can't interrupt the Supreme Court's teleconference arguments, as the phone lines are not open to the public. The Supreme Court next hears arguments Monday, and anyone who wants to tune in can find the live-stream at C-SPAN and other sites.

"Before we get started, I would like to remind everyone to turn their cell phones off," Roberts said at the start of Wednesday's hearing, marking the first time the chief had made such an admonishment.

Another warning might not be a waste of time.

 

Read more:

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'Kind of a Mess': Phone Arguments Get Rocky Debut at DC Circuit Amid Pandemic

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How to Tell a Justice, Respectfully, They're Wrong

What Makes Chief Justice Roberts Lose His Cool