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Blind justice: No visual cues in high court phone cases
Criminal Law Updates | 2020/05/08 00:22
On the evening before he was to argue a case before the Supreme Court years ago, Jeffrey Fisher broke his glasses. That left the very nearsighted lawyer with an unappealing choice. He could wear contacts and clearly see the justices but not his notes, or skip the contacts and see only his notes.

It wasn’t hard to decide. “I couldn’t imagine doing argument without seeing their faces,” Fisher said.

He won’t have a choice next month. Because of the coronavirus pandemic the high court is, for the first time in its 230-year history, holding arguments by telephone. Beyond not being able to see the justices’ nods, frowns and hand gestures, the teleconference arguments in 10 cases over six days present a range of challenges, attorneys said, but also opportunities.

The unprecedented decision to hold arguments by phone was an effort to help slow the spread of the virus. Most of the justices are at risk because of their age; six are over 65. And hearing arguments by phone allows them to decide significant cases by the court’s traditional summer break.

The attorneys arguing  before the court include government lawyers as well as those in private practice. Three of the 25 are women. Most have made multiple Supreme Court arguments and are familiar to the justices, although seven are giving their first arguments before the court. The Trump administration’s top Supreme Court lawyer, Solicitor General Noel Francisco, will argue twice.

The cases the justices are hearing include fights over subpoenas for President Donald Trump’s financial records  and cases about whether presidential electors are required to cast their Electoral College ballots for the candidate who won their state.

Justices have long said that the written briefs lawyers submit are vastly more important to the cases’ outcomes than what’s said in court. But the arguments also help them resolve nagging issues and occasionally can change a justice’s vote.


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