WEBVTT - How’s That New SCOTUS Rule Working Out?

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<v Speaker 1>This is Bloomberg Law with June Grosso from Bloomberg Radio.

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<v Speaker 1>There's something new with the Supreme Court this term. Lawyers

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<v Speaker 1>now get two minutes at the start of their arguments

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<v Speaker 1>to state their case before the justices jump in and

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<v Speaker 1>start tearing their theories apart. Justice Sonia Sotomayor forgot about

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<v Speaker 1>that two minute rule. At one of the terms early arguments,

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<v Speaker 1>Paul Hughes was just thirty six seconds into his argument

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<v Speaker 1>in a case at the intersection of criminal law and immigration.

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<v Speaker 1>If this element is not present, there is no preemption.

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<v Speaker 1>If they were applying to a college I'm sorry. You

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<v Speaker 1>can answer that question after your time. I'm sorry, Thank you.

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<v Speaker 1>Jordan Reuben, Bloomberg Law editor, joins me. Now, let's start

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<v Speaker 1>by talking about what it was like before the two

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<v Speaker 1>minute rule, when attorneys would get up to argue, barely

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<v Speaker 1>say a sentence and be interrupted by one of the justices. Right, So,

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<v Speaker 1>going back to most people trace this back to justice

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<v Speaker 1>school is coming onto the court in the mid eighties.

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<v Speaker 1>Really up through until very recently, the typical way an

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<v Speaker 1>argument would go is that an advocate would have a

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<v Speaker 1>difficult time really getting their argument out before being bombarded,

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<v Speaker 1>not just from Justice Scalia, but from really all of

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<v Speaker 1>the justices, or most of the justices anyway, with a

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<v Speaker 1>lot of questions. So lawyer is going to argue Aspreme

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<v Speaker 1>Court case, they know going into it that they have

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<v Speaker 1>to be ready to answer questions really almost from the start,

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<v Speaker 1>and might not have much free time to say whatever

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<v Speaker 1>they want. Yeah, Justice Scalia the pace center of what

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<v Speaker 1>they call a hot bench, which is still hot today,

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<v Speaker 1>but not as much laughter as when Justice Scalia was

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<v Speaker 1>on the bench. That's true. So now we have the

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<v Speaker 1>new rule giving advocates to uninterrupted minutes to speak before

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<v Speaker 1>the justices jump in with questions. It was unexpected. How

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<v Speaker 1>did it come about? So it really came out of

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<v Speaker 1>nowhere as far as everyone besides the justices themselves are concerned.

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<v Speaker 1>Right before or the start of this term, on the

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<v Speaker 1>first Monday of October, really right before the Court came

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<v Speaker 1>out with this announcement and surprised everyone, not just us

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<v Speaker 1>covering the court, but even the lawyers themselves. They were

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<v Speaker 1>told they would actually have this uninterrupted time, at least

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<v Speaker 1>in theory, to speak at the beginning of their arguments

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<v Speaker 1>without being interrupted by the justices. And now that's certainly

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<v Speaker 1>for the people who were about to start the arguments

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<v Speaker 1>in the first weeks of the term, that was a

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<v Speaker 1>big game change for them because they very likely prepared

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<v Speaker 1>going into the argument of not likely being able to

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<v Speaker 1>get much out by way of their own arguments, and

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<v Speaker 1>they were probably preparing to get peppered with questions right

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<v Speaker 1>from the start. So it's really a big game changer

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<v Speaker 1>in terms of at least how the arguments are set

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<v Speaker 1>up from the start. Do all the lawyers used the

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<v Speaker 1>two minutes in the same way to frame the main issue?

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<v Speaker 1>We've seen some different strategies by the lawyers in terms

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<v Speaker 1>of being able to frame the issue. That's really probably

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<v Speaker 1>the main phrase that's come up in all the lawyers

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<v Speaker 1>that we spoke to for this story and writing about

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<v Speaker 1>this new two minute rule and guidance is that they're

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<v Speaker 1>thankful for the opportunity to at least at the start

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<v Speaker 1>sort of set the table in the way that they

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<v Speaker 1>want to. Different lawyers have used different strategies in terms

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<v Speaker 1>of using not all the two minutes. Maybe they'll make

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<v Speaker 1>a few key points and then wave the rest of

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<v Speaker 1>their time. So really everyone is still feeling this new

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<v Speaker 1>world out, including the justices themselves. Some of whom are

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<v Speaker 1>having a little bit of trouble adjusting to being quiet

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<v Speaker 1>at the beginning of the argument. How have the justices

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<v Speaker 1>reacted to this? Have any of them said anything? The

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<v Speaker 1>main public comments that have come out so far have

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<v Speaker 1>been from Justice Kaigan, who, in a public talk, essentially

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<v Speaker 1>it seems like she's really not a big fan of

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<v Speaker 1>this new uninterrupted time. She actually recalled an anecdote from

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<v Speaker 1>when she was arguing and she was interrupted almost right

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<v Speaker 1>at the beginning of her argument from Justice Scalia himself,

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<v Speaker 1>I believe it was, And she actually reflected on that

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<v Speaker 1>argument almost fondly and seem to say that that's really

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<v Speaker 1>how it should be. Because again and many season Supreme

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<v Speaker 1>Court advocates who are almost skeptical of this new rule

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<v Speaker 1>will say that they feel most effective when they're responding

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<v Speaker 1>to the justices questions, as opposed to just standing there

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<v Speaker 1>talking and sort of just saying what they want, which

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<v Speaker 1>maybe will feel good, but you don't necessarily know whether

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<v Speaker 1>that's moving the case along in the way that you

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<v Speaker 1>want it to. Well, several lawyers told you that they

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<v Speaker 1>don't need to use all of the time, and that

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<v Speaker 1>struck me as odd. A lawyer who doesn't want to

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<v Speaker 1>talk about the case for two minutes only, right, exactly

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<v Speaker 1>a lawyer who whoever wants to stop talking at all, right,

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<v Speaker 1>and so and again this goes back to how are

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<v Speaker 1>you actually most effective? If you might think that you're

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<v Speaker 1>being the most effective when you're able to get as

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<v Speaker 1>many of your points out as you want, But really

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<v Speaker 1>the purpose of oral argument, and the purpose of the

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<v Speaker 1>briefing too, which happens before the argument, is to help

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<v Speaker 1>the justices decide the case. So you could be out

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<v Speaker 1>there talking for a full half hour, but if you're

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<v Speaker 1>not saying anything that's convincing any of the justices who

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<v Speaker 1>you need to convince, then you're actually really not helping

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<v Speaker 1>your case at all, and you're probably hurting it. And

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<v Speaker 1>one of the veteran Supreme Court practitioners you spoke to,

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<v Speaker 1>Paul Clement, said it isn't a one size fits all approach,

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<v Speaker 1>and he's had three arguments and used the two minutes

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<v Speaker 1>in three different ways. Right. So we're seeing this um

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<v Speaker 1>with someone like Paul Clement, but with the other lawyers too.

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<v Speaker 1>It's really just sort of applying normal argument principles to

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<v Speaker 1>this new terrain. And so it's a matter of having

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<v Speaker 1>a different strategy for every argument, which was true before,

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<v Speaker 1>but now just because you have this new time doesn't

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<v Speaker 1>mean you're going to use it in the same way

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<v Speaker 1>every time. So obviously a seasoned advocate will be able

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<v Speaker 1>to recognize that and know either they're going to use

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<v Speaker 1>their time to respond to certain points, maybe they're going

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<v Speaker 1>to anticipate certain counter arguments that are going to come

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<v Speaker 1>up later. And so, as I mentioned, everyone's really still

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<v Speaker 1>feeling this out, and we're seeing different lawyers use the

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<v Speaker 1>time differently or not at all. You know what surprised

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<v Speaker 1>me about this, Jordan's that there's so much fuss about it,

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<v Speaker 1>because I thought that lawyers would prepare as if they

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<v Speaker 1>were going to be uninterrupted for at least two to

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<v Speaker 1>three minutes anyway. But it seems to make the calculus

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<v Speaker 1>really different for them. Right. It's definitely not the case

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<v Speaker 1>that lawyers were planning on having uninterrupted time, certainly not

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<v Speaker 1>in in recent years by any stretch. And so it

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<v Speaker 1>does change the calculus in terms of if justices don't

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<v Speaker 1>have questions at the beginning, you certainly want to be

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<v Speaker 1>able to say something and it will be a little

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<v Speaker 1>awkward if you don't have anything to say. But it

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<v Speaker 1>certainly does change preparation to some extent because when people

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<v Speaker 1>were preparing before this rule, they were preparing to receive

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<v Speaker 1>questions from the start, and you know, it's still possible

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<v Speaker 1>that justice might jump in early. You know they're not

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<v Speaker 1>going to get in trouble. They're the Supreme Court justices, right,

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<v Speaker 1>It's nothing bad can happen to them. But you still

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<v Speaker 1>want to be prepared for that possibility to have a

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<v Speaker 1>canned speech, so to speak, just in case you're able

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<v Speaker 1>to use all that time, if not more. Thanks Jordan's

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<v Speaker 1>that's Jordan Reuben, Bloomberg Law Editor. Thanks for listening to

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<v Speaker 1>the Bloomberg Law Podcast. You can subscribe and listen to

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<v Speaker 1>the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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<v Speaker 1>com slash podcast. I'm June Brosso. This is Bloomberg