Good morning and welcome to Supreme Court Brief. The justices on Monday ended speculation about what the court would do with the March and April postponed oral arguments by announcing first-ever arguments by phone in 10 cases in May. We spoke with some advocates in those cases as they gear up for the historic hearings. Plus: Justice Oliver Wendell Holmes returns to the high court (when the building reopens to the public) this time in the play "Holmes" which unfolds in the court chamber.

Thanks for reading, and your feedback is welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro. Stay safe, and be well.

 

 

Hello, You've Reached the Supreme Court. Press 1 to Argue.

The showdown between Google and Oracle in the U.S. Supreme Court will have to wait until this fall, but the battle over President Donald Trump's financial records will be fought again in arguments in May. Those are among the results of the justices's eagerly anticipated guidance on how to deal with arguments in 20 cases postponed from the March and April argument sessions.

The court on April 13 announced it will hold six days of teleconference arguments over two consecutive weeks in May. The justices will hear 10 cases, counting consolidated cases as one, including challenges to two states' "faithless elector" laws, the Trump administration's defense of its expanded "conscience exemption" for providing contraceptive health insurance, and a trademark challenge involving Booking.com, among others.

Advocates in the 10 cases are waiting for more guidance from the court on the actual dates in May for their arguments as well as more logistical information on the phone format. C-SPAN is planning to carry the arguments live. In the meantime, the lawyers are working through their own logistical issues—landlines v. mobile phones, office v. home, support staff v. solo appearance—while also prepping for the argument.

"Without giving away any secrets, we'll probably be able to read our opening," said Jenner & Block partner Ian Gershengorn, who will argue McGirt v. Oklahoma. "I haven't thought through whether I can have anyone in the room or available to send emails or comments."

Gershengorn and several of the May advocates have had experiences with teleconference arguments, mainly in the district courts, although a number of federal appellate courts have adopted the technology recently.

"If structured the right way, you can have a very constructive back and forth, and hopefully with nine justices as well," Latham & Watkins partner Roman Martinez, who will face the solicitor general's office in Barr v. American Association of Political Consultants.

All of lawyers who spoke with us voiced concerns with a major missing element in teleconference arguments: non-verbal cues from the justices in reaction to the advocates' answers and to what the justices themselves say in response to each other's comments.

"So much of the argument is non-verbal cues that I do think it will, in an important way, change interactions between you and the court in much the same way a conversation over the phone is different from one using ZOOM video," Gershengorn said.

Regardless, they praised the court for its decision to move forward telephonically and for providing a live audio feed of the arguments for the public.

"I think it's good for the country that they continue to show the process is moving forward and good to show the court is being flexible like everybody else is," said Martinez. "We are where we are, and we've got important issues that need to be resolved." —Marcia Coyle >> More reading: US Supreme Court Sets Audio Arguments for Select Cases in May // US Supreme Court Is Urged to Suspend Paper Filing Requirement

 

 

Coming (Someday) to SCOTUS: One-Man Play About Oliver Wendell Holmes

When the Supreme Court becomes open to the public again, something unusual is set to take place: a play performed in the court chamber.

The justices themselves provide theatrics during oral argument, but this will be an actual play, and it may be a first. Titled Holmes, the one-man play is about the late associate justice Oliver Wendell Holmes Jr. In a letter to members, the Supreme Court Historical Society said the play "digs deep into the life of Oliver Wendell Holmes from his service in the Civil War to his time on the bench."

Todd Peppers, a political science professor at Roanoke College, is the playwright. He became fascinated with Holmes's colorful life as part of his extensive research on Supreme Court law clerks. "As I read accounts written by the former Holmes clerks, it struck me that the young men had worked for the Boston Brahmin version of Auntie Mame," Peppers said. "While the clerks were assigned some substantive job duties, the bulk of their time was spent on adventures with the justice."

Peppers said the play, postponed from June until the court reopens, will mark the upcoming 90th anniversary of Holmes's extraordinary nationwide radio address marking his 90th birthday in 1931. The play is produced and directed by Mary Hall Surface, well-known in the Washington art scene, and actor Kevin Reese, also familiar in Washington, will perform as Holmes. —Tony Mauro

 

 

Supreme Court Headlines: What We're Reading

• Supreme Court Avoids One Abortion Battle, But New Lawsuits Are Being Filed. "Abortion providers in Texas withdrew their request that the Supreme Court step in to stop the state's effort to restrict the procedure during the coronavirus pandemic, but new legal battles began Tuesday in Louisiana and Tennessee." [The Washington Post] The New York Times has more here.

• The 115-Year-Old Supreme Court Opinion that Could Determine Rights During a Pandemic. "That case could be invoked more in the months ahead. It is the high court's touchstone for state power during public health crises. But it is a decision with limits. The 1905 court warned against 'arbitrary' or 'oppressive' regulation and expressly connected mandatory vaccination to ending the spread of smallpox. Today, the question is how bluntly the case, known as Jacobson v. Massachusetts, might be wielded to justify curbing individual liberties without caveat." [CNN]

• Reading the Justices a Potential Challenge With Phone Arguments. "It will be interesting to see how the rough-and-tumble that makes Supreme Court arguments so challenging and fun will translate to the tele-conference," Jenner & Block's Ian Gershengorn said. [Bloomberg Law] CNN has more here.

• How a Supreme Court Decision Curtailed the Right to Vote in Wisconsin. "Under Chief Justice John G. Roberts Jr., the court had already seemed particularly inclined to favor restrictive voting laws, given its decision effectively striking down the most powerful provision protecting minority voting rights that had been enshrined in the landmark Voting Rights Act of 1965." [NYT]

• Trump Administration Backs Madoff Trustee's Hunt for $3 Billion Foreign Loot. "The Justice Department is backing efforts to force European banks and other overseas investors to give back roughly $3 billion they received from foreign investment funds that moved money in and out of Bernard Madoff's Ponzi scheme. The U.S. solicitor general on Friday urged the U.S. Supreme Court to pave the way for continued litigation against these foreign institutions, some of the last remaining targets in the global hunt for stolen cash from Mr. Madoff's $20 billion fraud." [WSJ]

• Justice Stephen Breyer Reflects on Supreme Court and Life in Isolation. "An image of the columned Supreme Court appeared as Breyer's backdrop, and his bespectacled face filled the frame. He was wearing a blue shirt, open collar, no black robe. Breyer said he is 'self-isolating' with his wife, a daughter, and the daughter's children. He spoke with dismay of the coronavirus pandemic but soberly looked ahead: 'We'll get over it.'" [CNN]