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Looking back at a year of Supreme Court cases tried over the phone

Few institutions are as tradition-laden as the U.S. Supreme Court, but the pandemic brought changes. Justices dialed in to hear their final oral argument of the term Tuesday- a case about sentencing reductions for low-level crack-cocaine offenses. Their final call also falls on the one-year anniversary of the court's very first remote oral argument. John Yang reports on the big adjustment.

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  • Judy Woodruff:

    The pandemic is transforming all of our lives, from how we gather to how we work.

    The U.S. Supreme Court is no different. The justices dialed in to hear their final oral argument of the term today, which was about sentencing reductions for low-level crack cocaine offenses.

    Their final call also falls on the one-year anniversary of the court's very first remote oral argument.

    John Yang reports on the big adjustment.

  • Woman:

    Oyez, oyez, oyez.

  • John Yang:

    Few institutions are as tradition-Laden as the Supreme Court, but the pandemic has created a lot of changes.

  • Woman:

    God save the United States and this honorable court.

  • John Yang:

    For a year, the high-ceiling marble courtroom has been empty, all oral arguments conducted by telephone conference call.

  • Neal Katyal:

    It's hard to know when to stop speaking, when to stop answering your question.

  • John Yang:

    Former acting Solicitor General Neal Katyal says the three cases he's argued over the phone have been a little different from the previous 41 in-person.

  • Neal Katyal:

    Well, I think one of the skills that you learn over time is, you really learn body language, down to where their finger is put on their cheek or something like that.

    Now, of course, we have no vision at all. It is just oral and audio. In real life, or even on Skype, I can at least look at you and see, are you zoning out? Do you look satisfied with my answer? On the phone, it's impossible. We don't get that just very simple level of feedback.

  • Justice John Roberts:

    Justice Thomas?

  • Michael Carvin:

    There's no reason to — there's no reason to say that simply…

  • John Roberts:

    Justice Thomas?

  • Michael Carvin:

    I apologize.

  • John Roberts:

    Yes.

  • Michael Carvin:

    I apologize, Your Honor.

  • John Roberts:

    Justice Thomas?

  • John Yang:

    And with chief Justice John Roberts playing timekeeper…

  • Justice Sonia Sotomayor:

    So, you really can't tie…

  • John Roberts:

    So, Justice Alito?

  • John Yang:

    … oral arguments are more formal question-and-answer than free-flowing discussion.

    With the time now, each justice getting a set amount of time discrete from the others, does that make a difference?

  • Neal Katyal:

    It makes a huge difference.

    I mean, one of the unique things about the Supreme Court is that the justices may not have even talked to each other about the case at all before the oral argument. So, sometimes, the questions, both pre-coronavirus and during coronavirus, are as much statements to one of their colleagues as they are questions to the advocate.

  • John Yang:

    Over the centuries, oral arguments have changed drastically.

  • Clare Cushman:

    In the first decades, the justices heard cases cold, which meant that they hadn't read any briefs.

  • John Yang:

    Historian Clare Cushman of the Supreme Court Historical Society:

  • Clare Cushman:

    The attorneys took advantage of the situation of having unlimited time and they would argue for five hours at a stretch, sometimes more than a week.

  • John Yang:

    Even as written briefs were required and time limitations put in place, the event was Capitol Hill's own matinee.

  • Clare Cushman:

    It was kind of the greatest show in town in the second half of the 19th century. You had society women who would wear their fancy bonnets with plumes, and the advocates strayed very far from the merits of the case. They were stem-winders, with allusions to the Bible and Roman law and Shakespeare.

  • John Yang:

    Justice Stephen Breyer told a University of Arizona law journal that one downside of the new format is that "there rarely is a light moment," though he unintentionally supplied one last year while hearing a case about robo-calls.

  • Stephen Breyer:

    Thank you.

    I'm sorry. The telephone started to ring, and it cut me off the call. And I don't think it was a robo-call.

  • John Yang:

    And, early on, justice Sonia Sotomayor struggled with the unmute function.

  • John Roberts:

    Justice Sotomayor?

  • Sonia Sotomayor:

    I'm sorry, Chief. Did it again.

  • John Yang:

    And last May, a sound never before heard in a Supreme Court argument.

  • Man:

    And what the FCC has said is that, when the subject matter of the call ranges to such topics…

    (FLUSHING SOUND)

  • John Yang:

    The court recommends that attorneys call in on a landline, even suggesting a specific model of speakerphone. The rest is up to the lawyers.

    Supreme Court veteran Neal Katyal:

  • Neal Katyal:

    I don't have to wear a suit. I do. I wear the exact same suit to every single Supreme Court argument from my first one to now my 44th one.

  • John Yang:

    While the lawyers perform in private, Art Lien, longtime sketch artist for NBC News and SCOTUSblog, does his best to capture them. Since October, he's been producing sketches from photos they provide.

  • Art Lein:

    I'm used to a lawyer at the lectern in a suit. It's the same old thing, and I have been doing it since the '70s, late '70s. To have a lawyer send me a photograph of themselves in a hoodie arguing is kind of refreshing.

  • John Yang:

    Do you have any favorites of sketches you have done since October?

  • Art Lein:

    There was a law professor, and he's the only one that was actually holding an old fashioned landline phone up to his ear. This attorney set up photographs of the nine justices in a moot court.

    And, you know, the masks.

  • John Yang:

    This isn't the first time the court has had to adjust for a public health crisis. Oral arguments were postponed in 1793 and 1798 because of yellow fever outbreaks, and again in 1918 due to the Spanish Flu epidemic.

    In 2001, anthrax discovered in the court's mailroom made a D.C. federal courthouse the Supreme Court's temporary home. And with the telephone arguments available to the public live, Katyal says it's time for the justices to shatter another tradition.

  • Neal Katyal:

    It's just an illustration of the fact that I think the Supreme Court has to move to live televised arguments.

    At the end of the day, the Supreme Court is deciding some of the most momentous issues facing America in the world. And it's our court. It's the people's court. And I think it's inspiring for all Americans to see it operate in action, particularly at a time when there's so much divisiveness in the country.

  • John Yang:

    There's no indication the court will drop its longstanding opposition to television coverage.

    For now, with all the justices fully vaccinated, most have even begun meeting in person again. But they won't return to the courtroom for oral arguments until at least this fall.

    For the "PBS NewsHour," I'm John Yang.

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