SCOTUS Resumes Arguments (By Phone) : Politics Podcast : The NPR Politics Podcast The Supreme Court resumed oral arguments this week after a lengthy hiatus because of the pandemic. The high court heard arguments via teleconference, a process that was (mostly) without hiccups. Remote arguments continue next week.

This episode: White House correspondent Tamara Keith, congressional correspondent Kelsey Snell, and chief legal affairs correspondent Nina Totenberg.

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Supreme Court Firsts: Teleconferences, Livestreams, And A Toilet Flush

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Supreme Court Firsts: Teleconferences, Livestreams, And A Toilet Flush

Supreme Court Firsts: Teleconferences, Livestreams, And A Toilet Flush

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  • <iframe src="https://www.npr.org/player/embed/852351832/852384483" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

BETH: Hi. This is Beth (ph) in Columbus, Ohio. And I'm currently reading about Kelsey Snell's rat adventure in The New York Times. Don't worry, Kelsey. It happens to the best of us. I had my car declared a total loss after a nest got sucked into my engine. This podcast was recorded at...

TAMARA KEITH, HOST:

2:14 p.m. on Thursday, May 7.

BETH: Things may have changed by the time you hear this, but rats making a home in your car's engine block is eternal. Have a great day.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

KEITH: Oh, my God.

KELSEY SNELL, BYLINE: (Laughter) My rat bae's fame continues.

KEITH: You have spawned, like, multiple New York Times-style trend stories, which is amazing.

SNELL: (Laughter) This is - my style is having rats in my car.

(LAUGHTER)

KEITH: Hey, there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.

SNELL: I'm Kelsey Snell. I cover Congress.

NINA TOTENBERG, BYLINE: And I'm Nina Totenberg. I'm the legal affairs correspondent for NPR.

KEITH: And Nina, you are here with us today because it was a historic week for the Supreme Court in two ways.

TOTENBERG: Yes, indeed. This was the first time that the Supreme Court has heard arguments remotely by telephone hookup and the first time that the public could actually hear arguments live.

(SOUNDBITE OF ARCHIVED RECORDING)

PAMELA TALKIN: Oyez, oyez, oyez. All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting.

KEITH: It's actually kind of funny because while everyone else has discovered Zoom calls and video conferencing during this time of pandemic, the Supreme Court has discovered the phone.

SNELL: (Laughter).

TOTENBERG: Oh, yes. And they actually - I think they actually, I think, had some reasons. I think that, technologically, the Supreme Court is not what you call at the forefront of technology - that's No. 1. And No. 2, I think they were worried that they could be hacked not so that they were doing something that hadn't been seen but somebody could come into the conversation - the actual oral arguments. And that has occurred in other kinds of hookups like this with courts on occasion. There have been people who came in, and that was their concern.

KEITH: Zoom bombing.

SNELL: We heard about that happening even with, like - yeah, with kids in schools, right? Like, this is not an uncommon occurrence and probably not an unfounded fear.

KEITH: So I guess, Nina, because they were on the phone, we don't know what they were actually wearing. But like, were they just in their homes? Were they wearing their judicial robes? Were they wearing bathrobes?

TOTENBERG: I have not, with my supreme investigative skills, been able to find out if any of them actually wore a robe. Somehow, I doubt it - I mean, a judicial robe. The chief justice was at the court somewhere in his chambers but not in the courtroom. And there were a couple of other justices who I think were at the court in their offices. But most of them, I think, were at home. And of course, Ruth Bader Ginsburg, for the last argument on Wednesday, was actually in the hospital because she had an infective gallbladder, was in acute pain apparently during the Tuesday argument and finally was persuaded to go to the hospital and found out that she needed to have a tube put in her to drain the duct.

KEITH: Oy. Nina, I'm wondering how this really affects the type of argument, the way the arguments go. I mean, normally, it's a lot of questions coming from the justices and it's kind of a free flow back-and-forth. How does that work when it's everybody on a phone call and you have to take turns?

TOTENBERG: Normally, it is really something of a free-for-all. And it's very much of a conversation between counsel and the justices. This time, they absolutely couldn't do that, really. So they organized it so the justices spoke in order of seniority. They were supposed to ask questions limited to about two minutes of back-and-forth and then have a second round if they had time, and they seemed to always make time. And only in the birth control case did it go wildly over and did people not abide by their time limits and the chief justice didn't rein them in.

KEITH: Is it harder to tell what the justices are thinking or, like, the rationale for their questioning if you're not in the room? I mean, I've always understood that part of the magic of these oral arguments is what you can glean from the interactions.

TOTENBERG: Well, that's what the lawyers say - that they can read - they look at the justices. They can see if they're not satisfied with an answer or if somebody else is put off by an answer. They can tell by their body language that they're pleased or displeased. And that wasn't there, as President Trump's lawyer Jay Sekulow told me in an interview that I did with him.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

JAY SEKULOW: You see them. You can see their reactions. You see if they nod to each other. Here, you're doing this literally over a telephone line, so you lose the intimacy, I think.

KEITH: As we have all discovered in the last couple of months, conference calls can sometimes be challenging. Were the justices of the highest court in the land also challenged by the technology?

TOTENBERG: A bit. Sometimes they didn't unmute themselves to ask the questions and there were these gaps.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: Justice Sotomayor.

SONIA SOTOMAYOR: I am sorry, Chief - did it again.

TOTENBERG: And some justices even got kicked off the phone.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERTS: Justice Thomas. Well, we'll come back to Justice Thomas. Justice counsel - Justice Breyer.

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 robocall. And we got it straightened out.

SNELL: What about the toilet flush?

KEITH: The toilet flush heard round the Internet (laughter).

(SOUNDBITE OF ARCHIVED RECORDING)

ROMAN MARTINEZ: And what the FCC has said is that when the subject matter of the call...

(SOUNDBITE OF TOILET FLUSHING)

MARTINEZ: ...Ranges to this topic, then the call is transformed.

TOTENBERG: The Twittersphere (ph) went nuts over that toilet flush. But I have to tell you nobody knows for sure who was flushing that toilet. It's the mystery of the first week of oral arguments.

KEITH: Nina, you have to have a theory, though. Who do you think it was? (Laughter).

TOTENBERG: It would be contrary to my interest to answer that question.

(LAUGHTER)

KEITH: Yeah. You got to maintain those sources. Anyway, let's not try - let's not think about this anymore. We're going to take a quick break. And when we get back, we're going to talk about the substance of the cases.

And we're back. So the Supreme Court heard a few cases this week and made one notable decision. Nina, what stood out to you?

TOTENBERG: Well, the first day was really a trial run to work out any bugs. It was a nondescript, arcane trademark case I won't bore you with.

KEITH: Thank you.

TOTENBERG: The next day was a little more consequential, but Wednesday's arguments were the bigger and flashier ones. The big deal case of the day was, in fact, the one dealing with birth control. And the question was whether the Trump administration's new rules that expanded religious exceptions and moral exceptions to providing birth control under your - under the ACA, the Affordable Care Act - whether that much broader list of exemptions could stand. And it sort of pits the idea of women's rights against religious rights, and that's - was very much represented in the court and in the argument, first by Justice Ginsburg, who's a longtime advocate for women's rights. And here's what she said.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost comprehensive coverage. This leaves the women to hunt for other government programs that might cover them. And for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn't want to happen.

TOTENBERG: And on the other side, representing the idea that religious rights have not been accommodated enough in American law and recognized in American law in previous Supreme Court eras - representing that idea was Justice Samuel Alito, who's written extensively about that.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: Not to go out in detail, but if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That's precisely the situation here.

KEITH: This seems like this is sort of a long-standing back-and-forth between these justices and - sort of a philosophical back-and-forth over the course of numerous cases.

TOTENBERG: Yes, and these are what I call the birth control wars, where the Obama administration constructed a workaround so that you could - religious entities like universities, charities...

KEITH: Hospitals.

TOTENBERG: ...And hospitals who have a religious affiliation could opt out, and the government would make arrangements with the insurer to provide separate birth control care for the woman who would still get it in a seamless fashion. The Trump administration junked that whole idea and just put in big exemptions for these religious-affiliated institutions who have religious or moral objections. It also applies to some for-profit companies, and that is the essence of the clash here.

The one thing that was kind of interesting was that several of the justices were very frustrated by the fact that the government and those challenging the government's rules cannot seem to come to a compromise, and on both sides of the aisle, so to speak. The chief justice, who's a conservative justice, and Justices Kagan and Breyer - all of those expressed concerns that the court shouldn't have to make this decision, that they have once before said to the parties, go compromise on this. Settle this. But that was at the end of the Obama administration. Nobody was interested particularly on the other side, I suspect, of settling. And what they got instead was the Trump administration that put in a much broader rule and doesn't even think that Obamacare should have to cover birth control.

SNELL: Nina, that kind of gets at one of the questions I wanted to ask you - is we've heard different versions of this question. This is the third time, right? And I'm just kind of curious, how is this different, and how has it evolved? Because it feels, I think on its face, maybe like it's just a turn on the same conversation.

TOTENBERG: Well, you know, for a very long time, at least as long as I've covered the court, which is decades, I regret to tell you - for a very long time, the idea was that in most instances where you have a broad - a rule that applies to everyone, and you carve out some religious exemptions for houses of worship, and you try to accommodate religiously affiliated places that are not houses of worship - but in the last analysis, a broad law that applies to everyone is supposed to apply to everyone. And now the court is very much focused in the other direction, to protect the rights of religious entities, which I think a majority of the court, the very conservative court, believes have been ignored for way too long.

KEITH: If somebody heard a toilet flush behind me just now, that was not me. That was someone else in my house.

(LAUGHTER)

KEITH: Supreme Court justices, they're just like us.

(LAUGHTER)

KEITH: So, Nina, I know you need to rush to get yourself on the air with this story, but before we let you go, real quick, what are you watching for next week with more arguments?

TOTENBERG: Oh, next week we get the Trump cases, the Trump subpoena cases. We get another big religion case, and we get a case involving the Electoral College that could really screw up the election (laughter). Let's just put it that way.

KEITH: As if the pandemic wasn't enough.

TOTENBERG: Right.

SNELL: Adventure to come (laughter).

KEITH: All right. Well, that is a wrap today. We will be back tomorrow with our weekly roundup. And we need your help, loyal listeners. Every week at the end of the roundup, we do a little thing we call Can't Let It Go, where we talk about the things we can't stop thinking about, politics or otherwise. And we want to know what you can't let go of. Let us know by recording yourself telling us about your Can't Let It Go. Twenty seconds is best. Email it to NPRPolitics@npr.org. You can just use the voice memo on your phone. Can't wait to hear from you.

I'm Tamara Keith. I cover the White House.

SNELL: I'm Kelsey Snell. I cover Congress.

TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.

KEITH: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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