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A judge’s guide to the Supreme Court livestream | Opinion

The Supreme Court’s streamed oral arguments provide a window into the justices’ decision-making on issues that directly affect Americans.

The justices of the U.S. Supreme Court gather for a formal group portrait to include a new associate justice, top row, far right, at the Supreme Court Building in Washington. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett M. Kavanaugh.
The justices of the U.S. Supreme Court gather for a formal group portrait to include a new associate justice, top row, far right, at the Supreme Court Building in Washington. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, and Associate Justice Brett M. Kavanaugh.Read moreJ. Scott Applewhite / AP
    by Marjorie O. Rendell, For the Inquirer
    Published 

As we all gather in front of our laptops to listen to Supreme Court arguments during the coronavirus pandemic, I am reminded of the time when families gathered to hear President Franklin D. Roosevelt’s fireside chats.

Surely I jest. While listening to oral arguments may not be as scintillating or meaningful as gleaning information about World War II, nor should it be equated to watching paint dry. The Supreme Court’s oral arguments provide a window into the justices’ decision-making on issues that directly affect the lives of Americans. Last week, that included one case about whether an agency of the executive branch (Health and Human Services) can expand a religious exemption to a statutory requirement that employers provide employees with health insurance coverage of contraception. Another concerned a federal exception to a statute prohibiting automated calls to cell phones that would permit such calls if they are for the purpose of collecting debt for the U.S. government.

Since I serve on a reviewing court, which bears some similarities in the nature of the work, I can imagine the level of preparation that goes into each Supreme Court justice’s work on a case. Reviewing courts hear cases that are appealed from trial courts. Unlike trial courts, which resolve any number of factual and legal questions in the course of a case, reviewing courts only consider select, specific legal questions. My law clerks and I have probably spent at least 50 hours preparing for each argument. These hours are spent reading attorneys’ briefs, appendices that explain what went on in the courts below, and the relevant cases cited by the parties; doing research into other possible cases and sources that could inform the issues before us; preparing bench memoranda summarizing the above; and interacting, as judge and law clerks, to explore various aspects of the case.

The Supreme Court justices engage in all that research, analysis, and exploration to consider the most difficult legal questions considered in the lower courts. Is it any wonder, then, that when listening to oral arguments, they can seem to go in directions or tangents that are hard to anticipate, even for those who understand what the case is about?

The time for argument is limited, and the justices have to come up with the best way they can think of to get at the heart of the matter. Sometimes their questions, including hypotheticals, demand a level of thought not easily mustered on the spur of the moment. We can’t imagine what they are getting at and pity the poor attorney who has to do the mental gymnastics to come up with an answer on the spot.

Justices may not be concerning themselves as much with the individual issues, but, rather, they are searching for a way to decide the case. They must affirm, or reverse, or vacate and remand. And five of them should ideally agree on the disposition. They may be searching for a way to convince their colleagues to decide the case the way they want it decided. The argument may at times seem more like argument among the justices than argument by lawyers.

As I listen to Supreme Court arguments, I try to concentrate on the questions the justices are asking to figure out their thought process. Where is he or she going with this? Is the justice pushing back on the lawyer, or on a colleague? Is he or she throwing a curveball, or a softball? Is the skepticism expressed by a particular justice real, or is he or she trying to get a reaction from the lawyer that will be an ah-ha moment for others?

It is very much like the making of sausage. Don’t concern yourself with the ingredients, just look at the final product. Much thought goes into the justices’ conferences to decide the case and write the opinions. Retired Justice Sandra Day O’Connor used to say, they take “the puzzles.” It is heady, challenging work. We are privileged, at least for the time being, to be flies on the wall while the sausage gets made. I urge you to take advantage and listen in.

You can listen to the Supreme Court’s oral arguments until at least May 13 via the C-SPAN channel, radio app, or website: https://www.c-span.org/supremeCourt/.

Hon. Marjorie O. Rendell is a senior judge of the United States Court of Appeals for the Third Circuit and chair of the board of directors of the Rendell Center for Civics and Civics Engagement.