Can you argue in pajamas? Lawyers get ready for first-ever Supreme Court oral arguments by phone


A Supreme Court Police officer walks up the steps at the U.S. Supreme Court on March 16, 2020 in Washington, DC.

Drew Angerer | Getty Images

The Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers.

The court said that it will hear 10 arguments over the first two weeks in May, including blockbuster disputes over the Electoral College and whether President Donald Trump can keep his tax records shielded from investigators. 

The issues are weighty, whether they are discussed in a basement office over a cell phone or inside the Supreme Court’s historical Corinthian building. But lawyers who will be arguing before the court are still adjusting. 

“I’m trying to figure out: Do you stand up? Do you sit down? Do you get a podium?” Jay Sekulow, an attorney for the president and a veteran Supreme Court lawyer, said in a recent interview.

Those questions are just the beginning. Do you use earbuds? Put the justices on speakerphone? And what about the handcrafted quill pens, which in more normal times are left on the counsel table as a souvenir for arguing attorneys?

“I am planning on giving my quill pens to my grandchildren, so I am hoping they still send us the quill pen,” said Sekulow, who will be asking the top court to reverse lower court rulings ordering Trump’s banks and longtime accounting firm to hand over his financial records to state and congressional investigators

The questions facing the group of attorneys working on the cases to be argued next month are emblematic of the ways the coronavirus has reshaped how Americans work and live.

While some of their cases are likely to live on in textbooks for decades, the attorneys face many of the same challenges confronting other white-collar professionals learning to work from home in the middle of a public health crisis. 

“I will not be in a place where my kids can ask me questions at the same time the justices are. That already happens in conference calls,” said Eric Rassbach, a lawyer at the nonprofit Becket who will be arguing in a religious freedom case next month.

“I haven’t figured that out yet,” Rassbach said, referring to how he would find privacy. “Four-year-olds do not understand what the Supreme Court is.” 

Ian Gershengorn, who was a top Justice Department lawyer under President Barack Obama, said the “core of preparation” — knowing the case, knowing the record, practicing your answers — will “mostly be the same.” 

But he has gotten some sartorial advice.

“I’ve gotten all sorts of suggestions from colleagues, ranging from pajamas to a morning coat — there’s a lot of flexibility,” said Gershengorn, who is now chair of the appellate and Supreme Court practice at law firm Jenner & Block. 

State and local courts often stream proceedings live, and some federal circuit and district courts have experimented with video cameras, but the Supreme Court has long resisted any changes to its tradition.

The court announced last month it would postpone some arguments indefinitely as a health precaution, the first time since the Spanish flu a century ago. On Monday, the justices said they will hear some arguments via teleconference in May. While decisions are generally handed down by the end of June, it is not clear if that tradition will hold amid the Covid-19 crisis.

‘I think it’s going to be harder to tell jokes’

In interviews, lawyers expressed overwhelming relief that the court was moving forward with arguments, even as some worried about kids and dogs being overheard on the phone. The most pressing concern, unanimously, was about how to gauge the justices’ reactions without body language cues.

“The opportunity to see people, and how they are understanding or not understanding what you’re saying, is very important,” said Lawrence Lessig, the Harvard Law School professor and 2016 Democratic presidential candidate, who will represent Electoral College voters next month in a dispute over whether they may disregard their state’s popular vote.

Lessig said he had already been doing moot courts, or rehearsals, over the videoconferencing platform Zoom. Now, he will “definitely” be doing moots by phone, he said. 

“It will place a premium on listening especially carefully and trying to pick up as much as possible from the questions,” said Roman Martinez, a partner at the law firm Latham & Watkins, who will represent the American Association of Political Consultants in a First Amendment suit at the court next month. 

Rassbach noted that in the Supreme Court building, all of the justices and attorneys are placed very close together. 

“You can see everyone’s facial expression. Think of all the different times that you see laughter in the transcript of the oral argument,” he said. “I think it’s going to be harder to tell jokes.”

Gershengorn said the ideal argument proceeds like a conversation.

While that approach will “inevitably be much harder” without nonverbal cues, he said he would take advantage of the “more relaxed setting to approach it in a more relaxed way.”

Gershengorn said he was rejecting the advice about pajamas, but doesn’t expect to be wearing a suit or a morning coat either: “More like jeans and a comfortable shirt.” 

While the relaxed atmosphere can help facilitate a conversation, some attorneys pointed to a potential road block: That they would not be able to tell the justices apart simply by the sound of their voices. The court has not released specific details about whether it will indicate which justice is speaking. 

“The complicated ones, off the record, are Kagan and Sotomayor, both New Yorkers,” said one attorney who will be arguing next month and who has appeared before the court on numerous occasions.

Distinguishing Chief Justice John Roberts from Justice Brett Kavanaugh can also be somewhat tricky, he said. 

The attorney later consented to the use of his comments, though without attribution, in order to speak candidly.

‘I will definitely not be checking the live Twitter commentary of my argument.’

Another unprecedented element of next month’s arguments: They are likely to be streamed live to the public, according to a court spokeswoman. 

Generally, Supreme Court arguments are held behind closed doors, with even members of the press barred from bringing electronic devices into the courtroom. Video cameras are barred, and audio recordings are released only rarely on the same day as arguments. 

Supreme Court attorneys said they will be tuning out Twitter, where communities such as #AppellateTwitter, generally in the dark until arguments conclude, are likely to pounce on the opportunity to weigh in in real time. 

“I will definitely not be checking the live Twitter commentary of my argument. No good can come of that,” said Martinez, formerly an Assistant to the Solicitor General. 

Gershengorn, asked about Twitter, said he would also avoid the platform, citing a saying from the sports world: “Once you start listening to the fans, that’s the best way to become one.” 

But the lawyers do look forward to being able to communicate with their teams via texting and email while arguments are ongoing.

The change in format also affords the ability to look things up — though, by the time attorneys show up for oral argument, they generally don’t have to resort to Googling.

“It will be nice to have materials in front of me if I need them, but in a case like this the questions will be coming my way like fastballs,” Martinez said. “There’s no time to look anything up.”

Despite all the changes, some attorneys emphasize that the most important aspects of the process have remained constant.

“The ultimate job is to do equal justice under the law,” Rassbach said. “If you’re doing justice, sometimes circumstances force you to do something in a different way.” 

Sekulow said that going to the Supreme Court is “awe inspiring,” but “I’m awe inspired by this as well.”

“Here we are in the middle of a serious health crisis in this country, a pandemic, and our institutions are able to adapt,” he said. “So we adapt.”

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