SUPREME COURT NOTEBOOK: Don’t stay so close to us | Associated press


WASHINGTON (AP) – Get tested. Wear a mask. Don’t get too close. Not your typical court orders, but it was the Supreme Court’s word to the lawyers and reporters who returned to the High Court this week for the first in-person arguments in over a year and a half.

Judges no longer hear arguments over the phone. But reminders that the coronavirus pandemic is underway were everywhere, from Judge Brett Kavanaugh’s absence after a positive coronavirus test to social distancing measures in the courtroom, though only Judge Sonia Sotomayor, who is in pain. of diabetes, wore a mask among the fully vaccinated judges.

The desk, which lawyers say is close enough to the judges to see the whites of their eyes, has been moved back a few meters. Lawyer David Frederick said the change made it easier to see the entire bench without having to turn your head, but undermined “the privacy of having a conversation with the judges.”

Journalists, normally crammed into three rows with a view of both judges and lawyers, were distributed around the courtroom in seats usually occupied by members of the public. The building remains closed to visitors. Between the journalists present and the clerks of the judges, the audience which can normally be several hundred was around 50 for each of the arguments.

Despite a transcontinental trip and a three-hour time change, California lawyer Jeffrey Fisher was thrilled to be back in court to have an in-person dispute on Tuesday after doing so by phone five times during the pandemic. The arguments were smoother than on the phone, and there’s no substitute for seeing how the judges react to an argument, Fisher said.

Fisher argued that New York had violated his client’s right to cross-examine a prosecution witness.

An exchange in this case, involving Gina Mignola of the Bronx District Attorney’s Office and Judge Stephen Breyer, illustrated the power of visual cues.

“I see you doubt what I’m saying here, Judge Breyer,” Mignola said, interrupting her response after seeing Breyer visibly react to what she was saying.

Breyer said, “No, I don’t doubt it. I just want you to explain it, ”Breyer said.

“Yes, you hope I will explain it to you better,” replied Mignola.

Breyer readily agreed, “Yeah. “



In the “pre-days” era, Justice Clarence Thomas spent years between questions in Supreme Court arguments, and when he intervened, it was usually after everyone had finished.

But for mandate opening week, Thomas had first access to attorneys in each of the court’s five cases. It turned out that the other judges, who usually don’t hesitate to intervene, have agreed to let the senior member of the tribunal come first.

In a case regarding when federal sentencing law should consider multiple break-ins on the same day at a mini-warehouse for one or more felons, Thomas asked the accused’s lawyer for how long must elapse between break-ins to treat them as separate crimes. .

“And if they said, listen… we’ve got plenty of time; we can go to Starbucks, have … a cup of coffee or something, actually, Dunkin ‘Donuts and have a cup of coffee or something? I mean – and they stay an hour or two. Is this a sufficient break? Thomas asked.

A day later, Thomas also asked Fisher a handful of questions.

“Tuesday was my 45th argument and the first time I have ever received a question from Judge Thomas in the courtroom,” Fisher said.



It is not clear whether Kavanaugh will be back in court when the judges hear oral argument on Tuesday and Wednesday.

For the first week, his high-backed black chair at the left end of the bench was empty.

At first, Kavanaugh struggled to intervene, seeming to stumble upon other judges trying to ask a question as his disembodied voice hovered around the courtroom.

However, things quickly went more smoothly later, and Kavanaugh’s absence from the courtroom was not a factor in the flow of arguments.



Before the pandemic, the Supreme Court was teeming with visitors on a typical day. They line up for coveted seats for arguments and courtroom tours when judges are not hearing cases. A queue sometimes stretches outside the cafeteria, especially when a school group is in the building around lunchtime.

None of this happened last week, and there is no public date for the building to reopen. Attendance at the courtroom was therefore rare and the cafeteria, renovated during the pandemic, offered many “take out” meals as well as a brand new espresso bar.

In the absence of the public, the courtrooms are quieter. Another difference: no queues in the bathroom.

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