They came hard and they came fast for Texas Solicitor General Scott Keller on the morning of March 2. During oral argument at the Supreme Court in Whole Woman’s Health v. Hellerstedt, the Court’s four liberals bore down against Keller when discussing the need for additional health and safety regulations at Texas abortion clinics.
Without Justice Antonin Scalia there to interject with less hostile questions to reprieve Keller, the liberal justices pressed him to defend the state’s rationales for why it would treat abortion procedures with more caution than other less morally fraught procedures such as colonoscopies and liposuctions. With a laser-like focus, they premised their questions on an understanding of abortion as a fundamental right that the state could only restrict in the most limited ways, if at all.
They matched this bold reading of Planned Parenthood v. Casey (1992), the case holding precedent, with an aggressive tenor in arguments. But it was not just in the oral argument in Hellerstedt. As another oral argument since Scalia’s passing made clear, the Court’s four liberals have now begun to assert their elevated numerical standing with more force and contempt for the weakened so-called conservative bloc.
Another Transformation in Oral Arguments
Perception of how a case may turn based on performance at oral argument is considered imprecise at best and grossly speculative at worst. Many factors ultimately influence justices on the fence in particular cases. The questions raised at oral argument are but some of the many that can be considered for final opinions and dissents.
Yet the forum does have value. Scalia famously transformed oral argument into a rapid-fire forum for testing the logical coherence of each side’s position. Once-sleepy affairs at the Court became comparatively vibrant exchanges between lawyers at the top of their craft. With the Court closely divided along ideological lines throughout Scalia’s tenure as a justice, oral argument became a much clearer public window into the fault lines potentially splitting the justices behind closed doors.
While only justices Scalia and Samuel Alito were ever consistently talkative at oral argument for conservative positions, all four of the liberal justices could be counted on to argue as a unified bloc. Due to Scalia’s death, the finite balance between talkative conservative, swing, and liberal members has been upset, and oral argument’s role is fundamentally different.
In the first couple of weeks since Scalia’s death, we are witnessing an unchecked and at times unhinged liberal quartet, whose positions will be less challenged because of Scalia’s absence. That is, unless Chief Justice John Roberts and Justice Clarence Thomas participate more openly and frequently in oral argument.
Justices Break Out Into Contempt
In Utah v. Strieff, argued February 22 and one of the first oral arguments since Scalia’s death, the ideologically split justices displayed notable hostility toward one another. The case involves a question of procedure when a police officer has been tipped off to a potential crime and arrives on the scene.
Justices Sonia Sotomayor and Alito engaged in a back and forth over the “exclusionary rule,” whether evidence becomes tainted when it is illegally collected. Since the 1960s, liberal justices have hewed to the notion that without the rule, police officers would be encouraged to run warrants on everyone they stop, have a greater chance at successfully detaining these people, and then be able to search them. Conservative justices have tended to scoff at the notion that police can or would be able to engage in this behavior broadly.
The exclusionary rule has been debated for many years and in many cases, but Strieff was the first without Scalia, a noted skeptic of the rule, in quite a while. So the liberals hammered away at objections offered by Alito and the lawyer representing Utah, Tyler Green.
One interaction, bears close attention. To counter the liberal notion that the entire justice system would join a conspiracy to issue more warrants so police could stop and search nearly anyone, Alito suggested to counsel for the accused, “Do you think the judges in traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?” For purposes of analogies, it was not a bad way of phrasing it, though as you will see soon, it may not have been the best analogy.
But before the counsel for Strieff could respond fully, instead of correcting the analogy and seeing her colleague’s concerns in the best possible light, Sotomayor turned passive-aggressive on her colleague. “I’m very surprised that Justice Alito doesn’t know that most of these warrants are automatic. If you don’t pay your fine within a certain amount of days, they’re issued virtually automatically.” Slate’s staunchly progressive court watcher Mark Joseph Stern savored his perception that Alito wore “an embarrassed smirk throughout the remainder of arguments, appearing appropriately shamed.”
What are we to make of this exchange? While the liberal justices have never held anything back in oral argument, personal slights such as how Sotomayor treated Alito are exceedingly rare. If there are any personal disagreements about conduct or character, they are almost always addressed out of the public view. Sotomayor could have presented another analogy or simply corrected Alito, but Sotomayor preferred to deploy a personal slight.
Sotomayor Steps Into the Breach
Scalia not being present may have especially emboldened Sotomayor. It is well known Scalia never favored Sotomayor among the young liberals as much as he did Justice Elena Kagan. As the most senior justice on the court since Justice John Paul Stevens retired (and even before Stevens’s retirement always an outsized persona), Scalia imparted a father-like quality from the bench to the other justices. His presence, combined with his gravitas and quick wit for disarming tense situations in the courtroom, likely encouraged prudent restraint among the other justices.
No doubt, there’s a tremendous void with him gone. Sotomayor may think she is replacing Scalia’s legendary verve during oral argument with outright contempt toward her conservative colleagues.
In another recent display of drama between the justices at oral argument, the liberals conducted an all-out verbal assault in the first blockbuster case since Scalia’s death, Hellerstedt. I witnessed the argument last Wednesday. The case concerns a series of measures Texas passed in the wake of the public’s interest in 2013 of the horrid health conditions found at Dr. Kermit Gosnell’s Philadelphia abortion clinic, dubbed a “house of horrors” by investigators.
What was left to the Court to determine was if Texas’s new health and safety regulations create an “undue burden” for access to abortion, as articulated in Casey. All four of the liberal justices premised their arguments against the new regulations with an understanding of abortion as a relatively safe medical procedure, morally and commercially no different than other medical operations.
Kagan argued, “We know liposuction is 30 times more dangerous, yet doesn’t have the same kinds of requirements.” Justice Ruth Bader Ginsburg pointed out, “This is about…a woman has a fundamental right to make this choice for herself.” But it was once again Sotomayor who shirked the norms of discourse during oral argument. As Roberts was trying to wrap up her questioning of the lawyer for the abortion clinics, Sotomayor shouted over Roberts to continue her question. Roberts allowed her to finish, though he was clearly peeved.
She reiterated a point made minutes earlier about how unnecessary it is to have a doctor present for a medically induced abortion via pills. As in the oral argument in Strieff, Alito was the only justice to speak up consistently for the conservative position, and by the end he seemed exhausted.
Supreme Court to Barack Obama
It’s clear the liberal justices are leveraging their newfound parity in numbers. “The Women Take Over” was the headline after oral argument in Hellerstedt at Slate. Of course, the liberal justices will always be alert to sway the frequent swing vote, Justice Anthony Kennedy, to their position in cases where the outcome is uncertain.
However, Kennedy is likely to vote according to his own unique reasoning, despite the wishes of the liberal bloc. A more lasting goal for the liberal justices, in more and more of these contentious cases, is to leave an imprint on the future Court and its perception. The magic number for them is not their current four, but rather five. As the progressive giant, the late Justice William Brennan, once said, “With five votes you can do anything around here.”
From their displays the last two weeks, it is as if they are signaling President Barack Obama to nominate someone…anyone…to replace Scalia, get him or her confirmed, and then the liberal bloc will do the rest. Thus, the feeling they wish to impart is one of momentum: that the liberal arguments have it and the conservative ones do not.
While the “the rule of five” may matter, another number also matters: 60. That’s how many minutes oral argument usually lasts in each case. Of course, time may be extended based on circumstances, but in general, time at oral argument is relatively zero-sum with Roberts running the show. The more time the other justices speak, the less time the liberal justices have to talk about the subjects they want to discuss.
Just as importantly is what the so-called conservative justices must do with their increased proportion of the time at oral argument. The conservative justices cannot only argue their own questions. They must point out when liberal justices rely on faulty reasoning. Just as Sotomayor was lying in wait to shame Alito in the Strieff oral argument, the conservative justices must respond immediately to the unmoored jurisprudence that emanates regularly from the liberal justices. Attack the ideas and the reasoning, never the justice offering them. Scalia was marvelous at this, but now with his vacancy, one can hope Roberts and Thomas find a newfound sense of duty to fill that void.
Roberts and Thomas Should Speak Out
Alito cannot be the only justice raising concerns and wearily responding to the barrage of arguments from the liberal justices. Many hope that Thomas asking his first question at oral argument in ten years the week after Scalia died would be a sign of things to come. By participating in oral argument more often, Thomas would be bucking his well-known understanding of the forum as having little influence on decisions of the Court. However, he would provide invaluable support to the morale of his friend and colleague Alito, and in turn the conservative side.
The liberal commentariat has made far too much hay out of Thomas’s silence at oral argument over the years, but that silence has meant the public has not benefitted from Thomas’s insights until the release of opinions. Thomas has been unfairly lumped in with Scalia’s reasoning over the years, despite their notable differences of approach. For example, Thomas frequently cites the Declaration of Independence as a legal document securing many of our liberties, while Scalia never did so.
Steering questions at oral argument in Thomas’s direction may force the other liberal justices to engage in conversations in which they would not normally participate, and thus reveal some interesting argumentative threads. Roberts should also participate more during oral argument, but less on the procedural questions which he so often asks, and more with questions on the merits of cases. While it is understandable that Roberts must also manage oral argument as the chief justice, he cannot leave Alito to shoulder the entire load himself if Thomas remains relatively silent.
Thomas and Roberts are in a remarkable position to teach, but they cannot teach as fully if they concede oral argument (and the news cycle that follows it) to the liberal justices. The conservative justices have quite varied approaches, and are in a remarkable position to teach not only law students, as Scalia would often consider his main audience, but also ordinary Americans looking for the Court’s sense of justice.
Rightly or wrongly, as the prominence of the Supreme Court in our politics has grown, more and more people are attuned to its work. Here’s hoping Thomas and Roberts see the growing liberal bloc’s assertiveness at oral argument as an opportunity to fill their former colleague Scalia’s shoes and provide morale to the conservative side.