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Monday, May 04, 2020

Oral argument

Aside from Justice Thomas asking two questions, the argument seemed typical. The exchanges between one justice and the attorney sounded the same. While the Chief was cutting people off after about 3-ish minutes, it seemed as if attorneys were better able to complete their answers before being moved to a different point. Individual justices let attorneys go a bit longer in answering their questions before following up or tweaking. Other than the Chief-controlled calling, I am not sure a case such as this would have sounded much different in-person.

The big difference is that the Justices were less the stars. Justice Breyer's questions were short and relatively coherent. And the argument lacked the practices of piling on and rescuing. The former is where one group of justices peppers one side with repeated questions; the latter is where a different justice helps an attorney who is struggling with an issue either with a softball  or a Jeopardy-style "Isn't the right answer  ____" question. The interesting thing is how it plays with other arguments this week and next, which involve more divisive issues that prompt a more-divisive Court to ask questions in this manner.

It also made clear that there is no rational reason not to have live audio (if not video) of regular arguments.

Update: I forgot about the best line of the argument, from Lisa Blatt arguing for Booking: Riffing off the government's argument that "Cheesecake Factory" is not a factory that makes cheesecakes, Blatt argued: "'Crab House' is not a little house where crabs live. They're actually dead and you eat them." I wonder if she lives in Maryland.

Posted by Howard Wasserman on May 4, 2020 at 11:44 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


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