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March 12, 2021 Articles

Supreme Court Advocacy in the Age of COVID-19

Galvanized by the pandemic, the Supreme Court finally enters the era of technology.

By Alicia Brenhaug
Supreme Court oral arguments were no exception to the need to adapt to the pandemic.

Supreme Court oral arguments were no exception to the need to adapt to the pandemic.

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This article discusses necessary adaptations that oral advocates must make during the pandemic, where there are new court rules—and a few surprises as well, including one about Justice Thomas.

The year 2020 was an unprecedented year, and Supreme Court oral arguments were no exception to the need to adapt. The new structure implemented in May changed the argument format in three major ways. First, the justices and advocates were remote by telephone—without video. Second, the Court implemented a system whereby the justices asked questions in order of seniority. Third, and possibly most important, each justice was given a time limit for questioning.

On December 16, 2020, the ABA’s Appellate Practice Committee presented a Roundtable titled “Supreme Court Advocacy in the Age of COVID-19.” The event, moderated by Bob Peck from the Center for Constitutional Litigation, included perspectives from Tom Goldstein, Deepak Gupta, and Roman Martinez. All three practitioners, who had their oral arguments rescheduled from April to later in the calendar, were among the first to navigate the new oral argument format. The panelists recounted their experiences preparing for presenting oral argument in the new format and offered diverse insights into preparing for and presenting remote oral arguments. 

Equipment Setup

Entering uncharted territory, each of the panelists had a different approach to how they would set up their space for oral argument. Goldstein, no stranger to Supreme Court arguments, decided to take full advantage of the remote situation and, as he said, “make lemonade out of lemons.” Specifically, Goldstein, who presented argument in Google LLC v. Oracle America, Inc., Docket No. 18-956, had 12 linear screens in front of him for a full visual of his entire case, including one screen for a rolling transcript of the oral argument and another with information on each of the justices. Similarly, Gupta, who presented argument in consolidated cases, Ford Motor Co. v. Montana Eighth Judicial District Court & Adam Bandemer, Docket Nos. 19-368 and 19-369, had information in front of him, including a whiteboard with notes, a screen devoted to real-time communications with his colleagues, and a timer for the justices. Martinez, who presented argument in Barr v. American Ass’n of Political Consultants, Inc., Docket No. 19-631, admitted he had the least sophisticated setup of the panelists, yet he still had a computer screen and an open chat with his team members. Accordingly, the advocates made an intentional decision to take advantage of the remote argument format.

Although everyone made use of the extra screens and resources, there was a consensus that much of it was distracting. Even so, both Gupta and Martinez mentioned that being able to communicate with their respective teams was valuable during opposing counsel’s arguments. Had the format been a video argument via Zoom or Webex, however, the preparation and setup for each would have looked completely different and likely closer to a real in-person oral argument.

Technology Problems

Even without video, the technology necessary to run oral argument was extensive, and the clerk’s office was crucial to the success of the cases running smoothly. The panelists explained that they were required to use an analog phone and have the sound quality of the connection tested by the court. To some degree, all three advocates had technology issues even with extensive preparation and backup plans.

Martinez, who argued his case in May, experienced what he called an “equipment-based adventure” during his oral argument, although he did not realize it until after the fact. During his back-and-forth questioning with Justice Kagan, someone else forgot to mute the computer. Later, the background noise was identified as a possible toilet flush, much to the delight of late-night comedians and Martinez’s six-year-old.

In Gupta’s case, the audio testing forced him to move to a different office the day before his argument. Moreover, on the day of his argument, his connection was cut off just before he was about to speak. Luckily, the staff in the clerk’s office were able to reestablish his connection quickly.

Goldstein, who was quarantined in Wyoming for three weeks with his entire team, also had a technology issue. Because of the requirement to have an analog connection, he had to have a technician out to the house to fix the phone system just a day before the oral argument.

Ultimately, all three panelists were able to adapt and resolve their respective issues and deliver their oral arguments. As Gupta succinctly said, though, “best-laid plans can fail.” The takeaway from the panelists was this: having a backup plan is a must, and trusting in your team and the Court staff is extremely important to be successful.

Argument Preparation and New Oral Argument Format

Preparing for the new oral argument structure was the biggest adaptation for the panelists. With the new format, Chief Justice Roberts kept time, and the justices took turns asking questions rather than the typical free-for-all format.

Martinez revealed that he thought carefully about how to structure his moots with the new format. Although the substantive preparation was the same as for any other case, he did practice over the phone. It was vitally important to sort out technological issues, so he built that into his practice sessions. For him, there were pros and cons to the new format, but ultimately he prefers the typical in-person format. For example, although the new format allowed more equal participation by the justices and gave the advocate more time to answer each question, it also led to a disjointed and less organic conversation.

Gupta also had to prepare differently to adapt to the new format. Prepandemic, he would spend more time speaking with colleagues about his case; but because he was lacking this interaction, he needed to practice talking about his case more often. To prepare, he used a combination of structured questioning coupled with free-for-all questioning by his team. He agreed with Martinez that the new format was inferior and that it made sense only because of the circumstances. Even so, the allocation of question time to individual justices allowed him to learn new things about the Court. For example, with the new format, Justice Thomas talked just as much as others, so the advocates learned more about where each justice was coming from in their line of questioning. The problem, in Gupta’s opinion, is that the justices had the same amount of time to talk, but this may not have been proportional to their interest in the case, and he could sense frustration from the justices surfacing in the arguments.

Goldstein also said how he practiced more, in part because his original argument date was postponed. He engaged in several back-to-back rounds of questioning from his colleagues for hours at a time. He explained he wanted to be able to naturally stop talking around the three-minute mark. In Goldstein’s opinion, the new format made it harder for one justice to learn from another and harder for the advocate to address a particular set of concerns referenced by one justice. Without a system of coherent follow-up, it was difficult to gain an overall sense of where the justices stood on the case, and the conversation suffered accordingly.

Advice for the Future

Based on the panelists’ reactions, the new format was lacking in many ways—the loss of body language, a disjointed conversation, and lack of feedback. As a result, Guptak, Martinez, and Goldstein had the following advice for advocates.

Gupta emphasized how it was a different experience to interact with individual justices for a fixed amount of time. He recommended building that into the preparation process. Although the new format allows an advocate to answer fully in the time allotted without being interrupted, it still left him with a “bouncing-around” quality to the argument. Future advocates at the Supreme Court should take that into consideration. Further, he highlighted the importance of thinking through all technical issues so that on argument day the advocate can focus on the argument’s substance and not its logistics.

Martinez echoed Gupta’s thoughts, emphasizing the importance of sorting out technological issues and building those issues into practice sessions. Although he had reservations about the new format, he acknowledged the advantages of being able to respond more fully to questions. Martinez is hoping that the justices will reflect on these advantages and consider changing the old format by “dial[ing] down the free-for-all even 10 percent.” This one change could, in Martinez’s view, make a big difference in presenting a case in the future.

Goldstein acknowledged that he was in the distinctive position of having argued in front of the Supreme Court many times before. This allowed him to free up space in his mind where he would have worried about other aspects of the experience. Specifically, the new format allowed Goldstein to free up mental space normally used to look for body language clues. Instead, he was able to take input from his team during the oral argument and use the information in real time. Overall, he advised other advocates to keep things simple. Ultimately, justices are looking for the answers; therefore, focusing on answering questions is the best way to prepare.

In sum, advocates and justices alike have been forced to adapt. While some of the changes have been difficult to navigate, other lessons learned may be useful even in a postpandemic future.

Alicia Brenhaug is a first-year associate at Pritzker Hageman in Minneapolis, Minnesota.

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