Believe the hype. This term at the United States Supreme Court, beginning Oct. 4, does have the potential to be especially historic and include blockbuster cases on wedge issues, like guns and abortion, for example. That’s not a promise of new landmark opinions but a recognition that the ingredients all seem to be there. They would still have to come together for any major precedents to change, however. In the meantime, it’s Justice Amy Coney Barrett’s first full-term, Justice Brett Kavanaugh has COVID-19, and the Court is under threat from Democrats desperate to avoid the consequences of a conservative majority.
The Supreme Court stopped hearing oral arguments in person in March of 2020. Since then, justices and attorneys have participated via telephone conference calls. The Court is now resuming in-person hearings, but without the public. The justices and support staff, the lawyers, and journalists will be back, however. Well, COVID-19 status depending, but more on that in a moment.
Before things stopped, oral arguments at the Supreme Court were a free-for-all. That is, it was for the justices. They would often interrupt the attorneys, and even each other, to challenge a point or get clarification. Teleconferencing does not lend itself to such exchanges, though, and so they were ditched when the Covid Court sessions went virtual. During these call-in hearings, justices asked questions in turn in order of seniority. That produced at least one remarkable change – and a welcome one at that: Clarence Thomas started actively participating in oral arguments.
The most senior associate justice once went over a decade without asking a question, pre-pandemic. When they return to the courtroom, there will now be a new system incorporating both a freestyle argument session and questions presented in turn. Per Amy Howe at SCOTUSblog, the Court did “not indicate how much time each justice will have for his or her questions, although it does direct the arguing lawyers to ‘respond directly to the questions posed’ and avoid making ‘any additional arguments not responsive to the question.'”
COVID at the Court
Justice Kavanaugh will participate in next week’s oral arguments remotely from his home after testing positive for COVID-19. He also missed Amy Coney Barrett’s formal investiture ceremony on Friday, October 1. The Court’s newest justice will begin her first full term on the Court, and expectations are that she will become even more active.
So far, the justices have only agreed to hear about half the total number of cases the Court has heard in recent terms. What cases the Court chooses may be just as important as the cases they have already chosen. In addition to the big guns and abortion cases often in the headlines, the Court is scheduled to hear lots of others, including one over whether Mississippi can stop a Tennessee company from pumping water out of the Magnolia State, which will be the first of the new term.
The People and The Court
Americans’ opinions of the U.S. Supreme Court have worsened recently. In July, 40% say they approve of the job the high Court is doing, down from 49%. This represents, by two percentage points, a new low in Gallup’s trend, which dates back to 2000. Several justices have made public comments in defense of the Court in recent weeks. Justice Barrett made such a speech at the University of Louisville, arguing the Court isn’t comprised of “a bunch of partisan hacks.” She said, “Judicial philosophies are not the same as political parties; it’s not my job to decide cases based on the outcome I want.”
~ Read more from Scott D. Cosenza.