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The Supreme Court justices returned to oral argument in person on Monday during a day filled with big questions about how the upcoming term will work, the cases before the judges and the future of the court.
When Chief Justice John Roberts handed down his new term at 10 a.m., it was the first time judges had been in the same room to hear a case in more than a year and a half. Judge Amy Coney Barrett was on the bench for the first time since she was confirmed last year. And Judge Brett Kavanaugh is absent after a positive COVID-19 test last week.
One of the biggest unknowns regarding the upcoming term was whether Judge Clarence Thomas would stop actively participating in pleadings as was the case before the pandemic. Justice has made clear its distaste for the freewheeling format of argument the court used before the pandemic, which has largely come back now that the judges are back in person.
But Thomas was the first judge on Monday to ask questions of a Mississippi lawyer who argued that Tennessee was essentially stealing Mississippi groundwater. He challenged the attorney that the Tennessee pumps do not technically cross the border, but rather draw water from an aquifer that flows between the two states.
Associate Justice of the Supreme Court Clarence Thomas attends Amy Coney Barrett’s swearing-in ceremony as Associate Justice of the Supreme Court of the United States on the South Lawn of the White House on October 26, 2020 in Washington, DC . Barrett will hear his first case in person as a Supreme Court judge on Monday, while Thomas will be closely watched for how he handles questioning. (Photo by Tasos Katopodis / Getty Images)
(Photo by Tasos Katopodis / Getty Images)
If it was a lake on the border between the states, Thomas asked, “Couldn’t you say it technically drew water from the Mississippi,” using the logic of the Mississippi?
The other judges began to intervene shortly after Thomas finished his questioning with equally difficult questions.
The court opted for a more structured form of argument during the pandemic to avoid confusion during the teleconferences. But recently released guidelines told lawyers to be prepared for a flurry of questions from judges and even cases in which judges might “ask questions before you finish your answer to the trial judge.”
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Lawyers will have two minutes at the head of their arguments to present their arguments without interruption before the start of the pooling period. But, adds the guide, “once the time limit for a lawyer has expired, each judge will have the opportunity to question that lawyer individually.”
The hybrid format could present some challenges with Kavanaugh working remotely as he has COVID-19.
“I doubt they’ll change the format on stage, having clearly thought about the structure they want,” said Ilya Shapiro, director of the Cato Institute at the Robert A. Levy Center for Constitutional Studies. “It could be that Judge Kavanaugh signals Chief Justice Roberts if he wants to get into the fray, or he might just yell into his speaker!”
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left to right are Associate Judge Samuel Alito, Associate Judge Clarence Thomas, Chief Justice John Roberts, Associate Judge Stephen Breyer and Associate Judge Sonia Sotomayor, Standing from left are Associate Judge Brett Kavanaugh, Associate Judge Elena Kagan, Associate Judge Neil Gorsuch and Associate Judge Amy Coney Barrett. Kavanaugh will be out of the courtroom on Monday due to a diagnosis of COVID-19. (Erin Schaff / The New York Times via AP, Pool, File
(Erin Schaff / The New York Times via AP, Pool)
Kavanaugh waited until the arguments were well advanced before asking the chief justice for a chance to question the Mississippi lawyer. He asked Mississippi to respond to concerns raised by a handful of other states in a brief. During the individual questioning period later in Mississippi’s presentation, Kavanaugh asked a procedural question about how the court should handle the case if Mississippi wins on the merits.
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While the cases to start the term on Monday aren’t the most exciting – a groundwater dispute and a question over how to define a word in a criminal law – judges are faced with what Shapiro says he could. be a successful term.
There’s a big gun rights case in New York City, a high-profile second school pick in three years, and an abortion case in Mississippi that has the potential to overturn Roe v. Wade, according to the court ruling.
And all of this will come against the backdrop of calls from progressives to retire Judge Stephen Breyer, grunts from the left in court, the upcoming report of President Biden’s commission on the tribunal and the possibility of the Senate changing its position. hands in mid-term 2022.
“It promises to be a bigger term than the one we’ve had in recent years,” Shapiro said. “Buckle up.
Fox News’ Bill Mears and Shannon Bream contributed to this report.
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