Supreme Court Arguments’ Most Memorable Moments So Far This Term

Supreme Court oral arguments keep getting longer, which can be advantageous or hazardous for the attorney at the lectern depending on their level of experience and how well they’ve prepared.

Empirical SCOTUS’s Adam Feldman said the justices have added an extra 10 minutes on average to each case. Arguments last term and so far this term averaged 92.5 minutes compared to nearly 84 minutes in 2021, Feldman said, citing data he collected with the help of Jake Truscott.

One of the pitfalls of oral argument is when the justices construct hypotheticals that attorneys just can’t get around, he said.

“If attorneys aren’t prepared for that it gives the justices more of an opportunity to counter argue,” he said.

From the surprising to the cringe-worthy, here’s a look at the most memorable moments from arguments so far this term:

Hypothetical Dig

Justice Amy Coney Barrett gave an unexpected hypothetical in a free speech fight over a “Trump too small” trademark that could have been seen as a dig at the former president who appointed her to the bench.

Concerned about how the case could impact copyright law, Barrett asked what would happen if someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.”

Barrett wanted to know what analysis the court would apply in reviewing whether a copyright restriction was permissible. Deputy Solicitor General Malcolm Stewart, who argued the government didn’t violate anyone’s constitutional rights in refusing to trademark the phrase, explained that copyright, unlike trademark law, has been used to foster free expression.

Gotcha Moment

Things got a little uncomfortable during arguments in a challenge to a federal law that bans people with domestic violence restraining orders from owning guns when Chief Justice John Roberts seemed to force the public defender to admit his client is dangerous.

Roberts asked if a significant showing of dangerousness is enough to disarm someone from owning a gun. J. Matthew Wright, who argued for the Texas man challenging the law, said he hasn’t seen any historical examples of that happening. “Well, to the extent that’s pertinent, you don’t have any doubt that your client’s a dangerous person, do you?” Roberts asked.

Wright said he’d want to know what it means to be a dangerous person.

“Well, it means someone who’s shooting, you know, at people. That’s a good start,” Roberts said, drawing laughs from those seated in the gallery.

Wright, whose client Zackey Rahimi participated in a series of five shootings, said “that’s fair.”

‘Purely Accidental’

Justice Samuel Alito made his colleagues pause during arguments in a case immigrants brought seeking another chance to prove their deportations would cause unusual hardship. The court’s third-most senior justice asked what constitutes unusual or exceptional.

“Let’s say I’m complaining about my workplace, it’s cold, it’s set at 63 degrees, there isn’t any coffee machine, the boss is unfriendly, all my coworkers are obnoxious, and, and you say am I experiencing…,” Alito said before laughter in the courtroom cut him off.

“No I’m not,” Alito said, seemingly trying to clarify that he wasn’t talking from lived experience before getting interrupted again by laughs.

“Any resemblance to any living character is purely, purely accidental,” he said.

Drama, Drama

There was an awkward moment during arguments over the $6 billion opioid settlement involving Purdue Pharma, the maker of OxyContin, when Justice Sonia Sotomayor seemed to get annoyed with the victims’ attorney and asked him to slow down.

Pratik Shah emphatically tried to argue that the victims will get nothing from the estate of Purdue’s owners if the court blows up the deal because it would make the Sackler family subject to a “tsunami” of direct creditor claims that could wipe out all of the Sackler’s assets. “I know you’re making this very dramatic, but I read your brief,” Sotomayor said.

She said Shah’s brief seemed to suggest there would only be a few direct claims filed.

Audacious Argument

Justice Elena Kagan had a zinger for Michael McColloch, the attorney representing the former hedge fund manager challenging the Securities and Exchange Commission’s use of in-house judges to decide allegations of fraud. Kagan said the court hasn’t had a case like this in 50 or 60 years because no one’s had the nerve to bring one.

“Nobody has had the, you know, chutzpah,” she said, getting interrupted by laughter, “to quote my people to bring it up.”

The case stems from nearly $1 million in penalties an SEC administrative law judge imposed against George Jarkesy for misleading investors in 2013. The Biden administration is appealing a decision from the US Court of Appeals for the Fifth Circuit, which said Jarkesy was entitled to a jury trial in the case SEC brought against him for allegedly misleading investors.