Month: May 2020

Telephonic Oral Argument Allows Justices to Explore Neat First Amendment Puzzles

Today, the Supreme Court heard oral argument by telephone, live-streamed to us eager listeners, in Barr v. American Association of Political Consultants.  Because this case was about a ban on robocalls, which, as Justice Kavanaugh mentioned, everyone hates, the Justices deliberated over pure, legal puzzles with no obvious political valence.  Instead of dividing the Court on a hot-button political issue, this case will accomplish something more fundamental and legally interesting.  The Justices must decide the correct conceptual First Amendment framework to apply to cases involving a bans on the “manner” of speech (here, automated calls are prohibited) where the statute later adds a “content-based” exception (except if the call concerns a debt owed to or guaranteed by the federal government).

Before tackling the legal intrigue of the case, I want to say a word about telephonic oral arguments.  The format, where the Justices each get about two questions and answers per side before Chief Justice Roberts firmly interrupts counsel and moves to the next Justice, has some virtues.   Each Justice must grapple with the weaknesses of both sides.  The format forces them to work together, ideology aside, to answer tough legal problems instead of fighting for air time.  The telephonic oral arguments are yet another example of how technology and social isolation have combined to make people kinder and more cooperative.  Of course, argument is less lively, and it is difficult to get too much momentum on any given topic, but the Chief has an uncanny way of stopping a litigant right when the attorney has provided a semi-satisfactory answer.   Plus, as an added treat, Justice Breyer was not on the line when it was his turn to ask Respondent questions because he received another telephone call, but, as he noted, not an automated call.

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