When Chief Justice John Roberts gavels in the new term at 10 soy., it will mark the first time that the justices will be in the same room to hear a case in over a year-and-a-half. Justice Amy Coney Barrett will be on the bench for the first time since she was confirmed last year. And Justice Brett Kavanaugh will be absent after a positive COVID-19 test last week.
One of the biggest unknowns about the upcoming term is whether Justice Clarence Thomas will stop being an active participant in oral arguments as was the case before the pandemic. The justice made clear his distaste for the freewheeling argument format the court used in which justices, in no particular order, would interrupt lawyers for the parties with a barrage of questions from the beginning of their argument to the end.
This format was changed when the court went remote in April 2020 so as to keep order on the telephone conferences. But guidance recently issued told lawyers to prepare for a flurry of questions from justices and even instances in which the justices might “ask questions before you complete your answer to the first Justice.”
Lawyers will have two minutes at the top of their arguments to make their points uninterrupted before the free-for-all period starts. Pero, the guidance adds, “Once an attorney’s time has expired, each Justice will have the opportunity to question that attorney individually.”
It’s possible that time is when Thomas will ask his questions. The most senior sitting justice was famous before the pandemic for remaining silent on the bench, sometimes for years on end. But he spoke up during the more organized pandemic arguments.
The format could present some challenges with Kavanaugh working remotely because he has COVID-19.
“I doubt they’ll change the format at the stage, after having clearly put thought into the structure they want,” Cato Institute Director of the Robert A. Levy Center for Constitutional Studies Ilya Shapiro said. “It could be that Justice Kavanaugh will signal Chief Justice Roberts if he wants to get into the scrum, or will just shout into his speaker phone!”
While the cases to start the term Monday aren’t the most exciting – a groundwater dispute and a question about the definition of a word in a criminal statute – the justices face what Shapiro says could a blockbuster term.
There’s a major gun rights case from New York, a second high-profile school choice in three years, and an abortion case out of Mississippi that has the chance to overturn Roe v. Vadear, depending on how the justices rule.
And all of this will be happening against the backdrop of calls from progressives for Justice Stephen Breyer to retire, court-packing grumblings from the left, the forthcoming report from President Biden’s commission on the court, and the potential that the Senate could change hands in the 2022 parciales.
“This promises to be a bigger term than we’ve had the last few years,” Shapiro said. “Buckle up.”
Fox News’ Bill Mears and Shannon Bream contributed to this report.