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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Well,

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Speaker 1: your argument first the Sporting Case eighteen fourteen two and

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Speaker 1: Osraela versus Bar Mr Hughes, Mr Chief Justice, and may

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Speaker 1: it pleased the Court the next time? Chief Justice John

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Speaker 1: Roberts says those opening words, we will all be able

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Speaker 1: to hear them. For the first time in its history,

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Speaker 1: the Supreme Court will hear oral arguments by telephone and

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Speaker 1: will allow live broadcasts, an extraordinary break with tradition and

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Speaker 1: about the measures mandated by the coronavirus pandemic. Joining me

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Speaker 1: is Neil Kincough, a professor at the Georgia State University

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Speaker 1: College of Law. So, Neil, are you surprised that this

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Speaker 1: court so steeped in tradition is changing the way to

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Speaker 1: hear arguments. Well, some of the changes don't surprise me

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Speaker 1: at all. I think they had no choice but to

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Speaker 1: go to these alternative forms of meeting and holding oral argument.

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Speaker 1: But the fact that they're allowing those arguments to be

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Speaker 1: live streamed is really extraordinary. It wasn't required under the circumstances,

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Speaker 1: and I think that's that's really quite a break. And

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Speaker 1: I can only hope that the Court will continue to

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Speaker 1: adhere to its new tradition. The Court has allowed the

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Speaker 1: release of audio on the same day as arguments about

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Speaker 1: twenty seven times. Live audio has never been allowed. The

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Speaker 1: Justices released the audio of the arguments at the end

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Speaker 1: of the week, and I've wondered if it's because they

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Speaker 1: don't want that audio being used in news stories on

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Speaker 1: the day of the arguments. Yeah, I think that they

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Speaker 1: perceived that a lot of their power is rooted in

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Speaker 1: the mystique around the Court and if people can actually

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Speaker 1: hear it live and hear the justices voices, that that

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Speaker 1: all starts to take away from from their mystique. So

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Speaker 1: I think there's something to the idea that they don't

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Speaker 1: like the oral arguments to be routinely used as part

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Speaker 1: of stories. But in this instance it's going to be

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Speaker 1: out their lives and there's no stopping its use. I'm

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Speaker 1: at and that they will be broadcast live on television

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Speaker 1: with some kind of graphics attached to them. And then

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Speaker 1: that raises some of the interesting conundrums that the Court

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Speaker 1: has pointed out in the past, like will lawyers start

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Speaker 1: playing not so much to the judges but to the

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Speaker 1: audience at home, and then following that out, will justices

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Speaker 1: do the same, Will they grandstand and try to create

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Speaker 1: a kind of public image and following for themselves. It

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Speaker 1: will all be really interesting to watch and follow the

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Speaker 1: attorneys who are going to be arguing. There's got to

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Speaker 1: be a lot of pressure on them now because they

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Speaker 1: know how many people are going to be listening to

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Speaker 1: these first arguments and some very controversial arguments. How will

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Speaker 1: they prep for these in a different way? You think, Well,

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Speaker 1: I think they'll have to prep in a different way

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Speaker 1: because in a number of the cases they have to

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Speaker 1: take account of the fact that there will be a

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Speaker 1: much broader public audience than usual. And so if what

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Speaker 1: you're arguing is some kind of antitrust issue or a

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Speaker 1: tax issue, then the home audience doesn't matter very much.

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Speaker 1: But consider, for example, the lawyers who are going to

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Speaker 1: be arguing the cases about Trump's amenability to subpoena does

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Speaker 1: he have to respond to congressional subpoenas or the subpoenas

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Speaker 1: from the New York Grand jury. The audience at home

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Speaker 1: is going to matter a lot. Public opinion matters a

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Speaker 1: lot in these cases, and I think the president's lawyers

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Speaker 1: are going to soon learn that phenomenon that many of

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Speaker 1: his advisers learn, and that is that he watches television

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Speaker 1: and if Fox News is broadcasting these arguments live, he's

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Speaker 1: going to be watching their arguments. And if they want

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Speaker 1: to continue to be his lawyers, they better take into

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Speaker 1: account the fact that he's paying attention to what they

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Speaker 1: have to say, and he's going to be paying attention

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Speaker 1: to how what they have to say plays in the public.

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Speaker 1: Another thing to consider what the lawyers is they don't

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Speaker 1: get any feedback from the justices. They can't see how

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Speaker 1: the justices are reacting, any facial movements, you know, anything

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Speaker 1: like that. Does that hurt them? It may hurt in

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Speaker 1: that it's hard to make that kind of a presentation

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Speaker 1: and where you just don't know what the audience is doing.

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Speaker 1: You watch the late night talk show hosts and it's

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Speaker 1: a completely different thing that they're doing when they don't

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Speaker 1: have a live studio audience and they give their monologues,

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Speaker 1: but there's no way for them to know did that

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Speaker 1: joke work, didn't it work? And to build off of

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Speaker 1: that it's a really difficult thing to do. And so

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Speaker 1: lawyers are going to have that problem of not knowing

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Speaker 1: whether the argument or the point that they've just made

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Speaker 1: seems to be one that is being accepted by the

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Speaker 1: court or one where the justices are rolling their eyes,

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Speaker 1: which very often that's immediate feedback that the lawyers get,

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Speaker 1: and they can try to fix and cover up their

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Speaker 1: tracks and restate the point in a way that may

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Speaker 1: work better if they know that there's eye rolling going on.

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Speaker 1: But if they don't, well, now they're left out there.

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Speaker 1: Just to wonder. That's a great comparison. When I've watched

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Speaker 1: the late night shows lately, it seems as if the

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Speaker 1: jokes are falling flat without the audience response, right, and

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Speaker 1: that phenomenon can work with the justices too. I mean

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Speaker 1: to carry the joke metaphor. Justices do make jokes from

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Speaker 1: the bench, and it'll be interesting to see what the

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Speaker 1: justices do when they don't know how their audience is

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Speaker 1: reacting to them, right, their audience being the other justices

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Speaker 1: and others in the court, So that effect is going

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Speaker 1: to play on everybody. Also, this is what's called a

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Speaker 1: hot bench. In normal times, the justices are rapid firing questions.

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Speaker 1: They step on each other sometimes so well, they have

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Speaker 1: to have different procedures when they're all on the telephone. Yeah,

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Speaker 1: that'll be hard, particularly for Chief Justice Roberts to manage, because,

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Speaker 1: as I think most of us have learned over the

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Speaker 1: last few weeks, when we're on zoom or whatever other

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Speaker 1: forms of communicating we're using, we very often end up

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Speaker 1: stepping on each other without meaning to start talking, and

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Speaker 1: you didn't know that somebody else is going to be

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Speaker 1: talking at the same time. The sorts of visual cues

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Speaker 1: that we very often get accompanying our spoken communications will

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Speaker 1: be absent. That's going to be a real challenge for

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Speaker 1: the Court in particular. Now they're choosing ten cases out

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Speaker 1: of the twenty that they postponed arguments in. Some of

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Speaker 1: them are very controversial cases you mentioned possibly the most

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Speaker 1: controversial the cases involving Trump's subpoenas. Also, there's a case

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Speaker 1: about faithless electors, members of the electoral College who don't

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Speaker 1: want to vote for the person their pledge to vote for.

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Speaker 1: That seems like one that would have to be decided quickly. Yes,

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Speaker 1: certainly it makes sense to try to decide that one

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Speaker 1: before the coming presidential election, because we'd like to know

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Speaker 1: in advance just what the duty of those electors is

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Speaker 1: and with the Trump subpoena, the Court was already getting

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Speaker 1: some criticism about putting those arguments off, and there was

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Speaker 1: concerned that that wouldn't be heard before the elections. That

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Speaker 1: seemed to be one of the most pressing. Yeah, it's pressing,

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Speaker 1: and it's important for the Court to decide it, not

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Speaker 1: just before the election, but long enough before the election

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Speaker 1: that it's not coming out right in the heat of

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Speaker 1: the election. So the most important thing is that the

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Speaker 1: Court render its decision in that case by June. Having

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Speaker 1: pushed the oral arguments back a little bit shouldn't prevent

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Speaker 1: the Court from doing that. So some of the other

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Speaker 1: cases to involve religion, including one the Trump administration, the

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Speaker 1: question is whether it may allow employers to limit women's

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Speaker 1: access to free birth control under Obamacare. Do you see

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Speaker 1: those as being time sensitive? Yes and no. So I

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Speaker 1: answer to your question would have been no, because those

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Speaker 1: aren't cases that need to be decided in the way

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Speaker 1: the subpoena case does. There's not an election coming up

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Speaker 1: that makes these cases urgent in the way the Supreme

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Speaker 1: Court looks at it. Of course, if it's your insurance

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Speaker 1: plan and your birth control is an issue, of the

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Speaker 1: utmost urgency. But the way the Court looks at these issues,

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Speaker 1: it's not so much. But the thing I think makes

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Speaker 1: it urgent is if you think about the interview that

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Speaker 1: Attorney General bar gave with Fox News last week when

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Speaker 1: he was suggesting that there are real limits on how

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Speaker 1: governments can respond to the pandemic in ways that might

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Speaker 1: affect religion. Well, what the Supreme Court says in these

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Speaker 1: insurance cases is apt to have real consequences for what

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Speaker 1: kinds of limits are there on governors imposing limits on

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Speaker 1: groups getting together when those neutral limits apply to religious

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Speaker 1: gatherings as well. So I think the Supreme Court has

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Speaker 1: something important to say on that question, and it's pretty

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Speaker 1: urgent that that get out there. Given where we are

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Speaker 1: with the responses to the pandemic. Some of the others

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Speaker 1: may be more difficult to figure out why they put

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Speaker 1: them on the list of arguments. One involved robocalls and trademarks.

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Speaker 1: So at this point, do you think they're just trying

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Speaker 1: to balance out the controversial cases with the not son

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Speaker 1: of virtual cases. Is there any rhyme or reason to this?

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Speaker 1: There must be, right, it's the Supreme Court. Yeah, we

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Speaker 1: we like to think there's rhyme or reason, and I

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Speaker 1: suspect there is. But the Supreme Court marches to the

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Speaker 1: beat of its own drummer. What it thinks is important

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Speaker 1: isn't necessarily what the rest of us think is important.

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Speaker 1: So you know, it's choosing cases based on its its

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Speaker 1: own thought process, and very often we're not allowed to

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Speaker 1: know what that thought process is. And I think that

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Speaker 1: describes some of what you're talking about. I think the

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Speaker 1: robocalls cases might have something to do again with the

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Speaker 1: coming elections, the prevalence of robocalls in that setting. But

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Speaker 1: some of the other questions, I think our questions that

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Speaker 1: didn't obviously need to be taken now as opposed to

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Speaker 1: when the Court might get back together in October. If

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Speaker 1: these live streaming arguments go well, the lawyers don't grandstand,

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Speaker 1: the justices are comfortable, will there be pressure on the

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Speaker 1: Justice is to continue live streaming? Although I often wonder

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Speaker 1: if the justices ever feel any real pressure. I don't

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Speaker 1: think they feel pressure, but I do think it will

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Speaker 1: lend itself to exactly that argument. And you know, it's

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Speaker 1: a it's a changing bench. A lot of the characters

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Speaker 1: who were most adamantly opposed to cameras in the courtroom

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Speaker 1: and live broadcasts aren't on the court anymore. Just a suitor,

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Speaker 1: for example, was an adamant opponent, And I think the

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Speaker 1: concerns about grandstanding, they were never mentioned by name, but

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Speaker 1: a lot of that was about Justice Scalia, and that

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Speaker 1: dynamic isn't there on the court anymore. So I think

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Speaker 1: a lot of the bases of the Court's reluctance maybe

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Speaker 1: our eroding, and this kind of forced experiment might end

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Speaker 1: up providing an impetus for the Court to change its policy.

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Speaker 1: It won't change its policy because it's knuckling under the pressure.

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Speaker 1: It's independent and it just doesn't feel the kind of

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Speaker 1: pressure that's a congress might because it has to stand

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Speaker 1: for reelection. Thanks Neil. That's Neil Kinkoff, a professor at

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Speaker 1: the Georgia State University College of Law. The Supreme Court

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Speaker 1: alter tradition for the second time this week in the

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Speaker 1: face of the coronavirus pandemic. It will limit the number

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Speaker 1: of paper filings required of advocates. Joining me is Kimberly

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Speaker 1: Strawbridge Robinson Bloomberg Law Supreme Court reporter, So Kimberly tell

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Speaker 1: us what the Court usually requires for filings and what

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Speaker 1: it's requiring now, Well, the requirements to file Supreme Court

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Speaker 1: documents are very robust. In fact, there are actually private

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Speaker 1: companies that specialized in printing these documents to make sure

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Speaker 1: that you can actually meet all of the requirements. And

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Speaker 1: usually what the Supreme Court requires is forty sets of

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Speaker 1: bound documents for each filing that you make. Well, now,

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Speaker 1: it's saying in the age of coronavirus, and to help

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Speaker 1: limit the spread not only to the justices but also

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Speaker 1: to the people who work at the Supreme Court and

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Speaker 1: process these filings, you just need to file one version

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Speaker 1: and it doesn't have to be bound. So out of

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Speaker 1: work for the Spreme Court printers, I guess for now,

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Speaker 1: I guess. So other federal courts have led the way

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Speaker 1: to doing away with some of the old requirements during

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Speaker 1: this time, that's right, and so we could see the

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Speaker 1: Supreme Court really actually catching up with the lower courts

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Speaker 1: um and what they have been doing. We do that

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Speaker 1: not just with these paper filings, but also things like

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Speaker 1: telephonic herings and live streaming of arguments too. Now the

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Speaker 1: Court has announced its schedule for the upcoming argument by

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Speaker 1: telephone sessions. That's another break with tradition, of course, what's

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Speaker 1: the first argument scheduled? Well, the first argument scheduled is

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Speaker 1: actually a trademark case UM that's really been running under

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Speaker 1: the wire um and the Supreme Court cases until now. UM.

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Speaker 1: It has to do with a really technical part of

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Speaker 1: the trademark law and what can be trademarked. There's been

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Speaker 1: some speculation going around that one of the reasons that

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Speaker 1: the Supreme Court agreed to hear that case first was

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Speaker 1: that there are really see and advocates um that are

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Speaker 1: going to be arguing that case. People from the Solicitor

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Speaker 1: General's Office, which of course is the federal government lawyers

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Speaker 1: in the Supreme Court, and also a woman named Lisa

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Speaker 1: Black from Williams and Connelly who has gotten a lot

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Speaker 1: of props from the justices before for her arguments and

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Speaker 1: her argument styles. So a test run sort of not

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Speaker 1: with one of the controversial cases, that's right, I mean,

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Speaker 1: at least that's the speculation. The Supreme Court very rarely

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Speaker 1: explains why it issues a lot of these orders, and

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Speaker 1: so we don't know for sure, but that's one reason

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Speaker 1: for why they might have agreed to hear this somewhat

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Speaker 1: lower profile case. The first thing off of that, what

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Speaker 1: are you going to be listening for when you hear

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Speaker 1: these arguments. I'm curious about how they're going to avoid

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Speaker 1: stepping on each other and whether they they'll have to

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Speaker 1: be in sort of a line, an audio line. Well,

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Speaker 1: they can't even avoid stepping all over each other during

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Speaker 1: oral arguments court. This current Supreme Court is a really

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Speaker 1: hot bench and you often get justices who are interrupting

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Speaker 1: each other, talking over each other, and the Chief Justice

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Speaker 1: really has to play traffic cop in the courtroom. So

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Speaker 1: it will be interesting to see how he manages that

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Speaker 1: through telephone. And we will all now have these experiences

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Speaker 1: being on zoom and having people talk over one another. UM.

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Speaker 1: But this is even more challenging. There's no video involved apparently,

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Speaker 1: so UM I will be watching out for that. Another

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Speaker 1: thing that I'm going to be watching out for is

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Speaker 1: that the Supreme Court has long resisted UM live streaming

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Speaker 1: any audio or televising arguments. And one of the reasons

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Speaker 1: is they say that some of the advocates might grandstand,

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Speaker 1: and maybe even some of the justices. So I'll be

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Speaker 1: interesting to see if that happens during these arguments. If

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Speaker 1: it does, it may be a reason for the Justices

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Speaker 1: to continue to resist these once we go back to normal,

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Speaker 1: and if it doesn't, it might give them something to

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Speaker 1: think about for the future. Perhaps the most listen to

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Speaker 1: arguments will be those in the blockbuster case over subpoenas

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Speaker 1: for President Trump's financial records. When is that scheduled? Well,

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Speaker 1: the Justices set that one for May twelve, so it's

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Speaker 1: actually the second to last set of cases that the

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Speaker 1: Court is gonna hear. Hopefully they'll have worked out all

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Speaker 1: the kinks before the nation uh tunes in to listen

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Speaker 1: to that one. And another time sensitive case is the

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Speaker 1: one about faithless electors that scheduled That was scheduled that's

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Speaker 1: going to be the last argument on May thirteenth. And

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Speaker 1: so you know, I was talking before about speculating why

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Speaker 1: the Justices put these cases on while putting other cases

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Speaker 1: off until the beginning of next term. These two cases

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Speaker 1: that we just talked about, the subpoena cases and the

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Speaker 1: faithbook electors, have some implications for presidential election and so

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Speaker 1: they're time sensitive. Other cases, though it's harder to pinpoint

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Speaker 1: why the Justice put those cases on and not other ones.

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Speaker 1: I think, in particular for me, it was surprising to

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Speaker 1: see that there's really a blockbuster I p case that

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Speaker 1: the Court was set to here earlier, Google versus Oracle

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Speaker 1: that's put off until next term. And again we don't

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Speaker 1: know why. The Justices usually end the Supreme Court term

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Speaker 1: on time. They're usually out of there by July for

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Speaker 1: their vacations. Does this mean they're going to have to

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Speaker 1: extend the term as well to make the decisions? Well,

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Speaker 1: I think it really depends on how difficult it is

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Speaker 1: for the Court to kind of play catch up with

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Speaker 1: these other cases. So typically what we see is that

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Speaker 1: arguments will end in April and the justices will take

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Speaker 1: May in June to wrap up ball their opinions. It

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Speaker 1: includes opinions that have been argued later in the term,

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Speaker 1: but also the really difficult ones for them to decide.

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Speaker 1: World There'll be a lot of version and drafts going

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Speaker 1: back and forth. So the justices have been using this

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Speaker 1: time where they haven't been hearing arguments to write those

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Speaker 1: cases and get difficult questions hammered out. Then maybe we

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Speaker 1: won't see a delay, but if they're still having a

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Speaker 1: lot of difficulty, we could see that time moved back.

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Speaker 1: Listeners may remember that this term was set up to

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Speaker 1: be a real blockbuster, so there are going to be

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Speaker 1: a lot of controversial she's for the justices to work through.

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Speaker 1: Thanks so much, Kimberly. That's Kimberly Strawbridge Robinson, Bloomberg Law

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Speaker 1: Supreme Court Reporter. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg