Supreme Court term begins with first in-person arguments of COVID-19 era

Justices, attorneys and press return, but public still barred

Supporters and opponents of abortion rights demonstrate Monday in front of the Supreme Court as justices began their new term. (Bill Clark/CQ Roll Call)
Supporters and opponents of abortion rights demonstrate Monday in front of the Supreme Court as justices began their new term. (Bill Clark/CQ Roll Call)
Posted October 4, 2021 at 3:36pm

The Supreme Court is back, but things aren’t totally the same.

The justices returned to in-person arguments for the start of the high court’s new term Monday for the first time since the COVID-19 pandemic closed the courthouse to the public 18 months ago.

Chief Justice John G. Roberts Jr. opened the term in the courtroom without mentioning that, or the pandemic at all. He noted that Justice Brett M. Kavanaugh would participate over the telephone, as the full court had done for the entire last term.

Roberts did not note that it was because Kavanaugh tested positive for the coronavirus Thursday, as part of new testing protocols and limited access to the courtroom. Attorneys arguing the case appeared in the typical spot just feet in front of the justices, and some reporters attended, but the public is still not allowed.

The court’s hallways, normally bustling on mornings when the court is in session, were eerily quiet, The Associated Press reported.

On the bench, Justice Sonia Sotomayor wore a mask, while the rest of the justices did not wear masks, according to reporters in the courtroom. It was the first time Justice Amy Coney Barrett had appeared in person for arguments since she was confirmed a year ago in the thick of the pandemic.

Gone were the stops and starts, and pauses, of questions and answers that come with a telephonic format under which each justice had an allotted time to ask questions and occasionally forgot to hit the unmute button. Back was more freewheeling argument, with justices cutting in on attorney answers more smoothly, picking up on each others’ line of questioning.

Justice Clarence Thomas, who was famously tight-lipped during arguments for years but got more active during the remote pandemic arguments, continued his more talkative streak. In the first argument, in a dispute over aquifer water rights between Mississippi and Tennessee, Thomas was the first to ask questions of the first two attorneys to make their case.

Kavanaugh, on the phone with his questions audible in the courtroom through speakers, failed in his first attempt to interject with a question. The rest of the justices took care to make sure he got in soon enough.

Justice Neil M. Gorsuch was the first to take advantage of a new addition to in-person arguments, in which Roberts paused to ask each in turn if they had any questions.

“I do have one quick question just to follow up on Justice Sotomayor’s line of questioning to you, counsel,” Gorsuch said when Roberts went down the list of justices by seniority and got to his name. “Suppose you fail to prevail here today. I’m wondering what we do next.”

At times, Justice Stephen G. Breyer’s voice made him sound happy to be back in the courtroom.

“You know, San Francisco has beautiful fog. Suppose somebody came by in an airplane and took some of that beautiful fog and flew it to Colorado, which has its own beautiful water — air, and somebody took it and flew it to Massachusetts or some other place,” Breyer said. “You understand how I’m suddenly seeing this, and I’m totally at sea.”

The court’s website, for the first time, displayed a link that provided livestreaming of the audio from the courtroom, a development that did not appear to alter the traditional flavor of the arguments.

The justices have previously contended that live audio or television would tempt lawyers to grandstand to have their soundbite on the evening news or cause justices to filter their questions at the risk of being taken out of context.

On the sidewalk in front of the court, protesters on both sides of the abortion debate were the clearest sign that the court will hear argument later this term on more contentious cases.