On The Case

For Supreme Court, COVID-19 response is ‘pretty challenging': ex-Roberts clerk

(Reuters) - On Friday, the U.S. Supreme Court announced that it was postponing oral arguments in all of the cases it was scheduled to hear in April. The justices previously postponed their March oral arguments, so there are now nearly two dozen cases – including such time-sensitive disputes as whether states can penalize ‘faithless’ Electoral College delegates who buck the outcome of the state popular vote – queued up and waiting to be heard. So far, the justices have remained mum about contingency plans if COVID-19 prevents the court from eventually convening to hear the postponed cases before this term ends in early summer.

One of the delayed cases is Barr v. American Association of Political Consultants, which, as I’ve reported, asks the justices to decide whether a 2015 amendment to the Telephone Consumer Protection Act violates the First Amendment and, if so, whether the entire law is unconstitutional. Roman Martinez, an appellate specialist at Latham & Watkins and a onetime clerk for Chief Justice John Roberts, represents the coalition of political consultants that contends the TCPA is unconstitutional. Last Thursday, before the Supreme Court announced the delay, Martinez was on the phone with the rest of his team, trying to figure out how to get ready for a Supreme Court argument without leaving his house in the Maryland suburbs.

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He had been scheduled to hold one moot court session at Georgetown and another at the U.S. Chamber of Commerce, he told me. Those couldn’t happen in person, he said, but he was going to see if Georgetown and the Chamber could pull together moot courts by Zoom. “It would have been something else, preparing on Zoom for a Supreme Court argument from the house,” said Martinez, whose 5- and 6-year old kids are taking classes right on the other side of the door to his home office. “I don’t even have a good printer here,” he joked.

Thought the postponement removes that particular challenge, Martinez said he was disappointed that he won’t get the chance to argue the case right now, when he was geared up for it. He said he’s nevertheless hoping arguments will take place. “I just don’t know when or how,” he said. “I would hate for (the justices) to have to go to a telephonic or video oral argument format, but if that’s what they have to do, we will all do the best we can – the advocates and the justices and the clerks – to make it work.”

Supreme Court oral arguments, Martinez said, are a critical part of the justices’ process of deciding cases, even if the argument doesn’t change the outcome in most cases. (Martinez argued a half-dozen cases before the justices when he worked in the Solicitor General’s office at the Justice Department. He also just won Babb v. Willkie, an age discrimination suit against the Veterans Administration that was the first case he argued at the court after returning to Latham in 2017.) Martinez said he’s adapting to presenting arguments by phone to trial courts – he’s prepped for two telephone hearings so far – but much prefers to see how the court reacts to arguments so he can make adjustments on the fly.

Martinez said he didn’t want to hazard a prediction about how the Supreme Court will eventually handle the backlog of postponed arguments. Chief Justice Roberts, he said, is “a traditionalist (who) likes to have the court running according to its normal schedule, with the normal argument calendars.” For the chief justice, he said, dealing with the disruption from COVID-19 must be “pretty challenging.”

“The way they’ve handled it so far has been pretty careful, pretty deliberate,” Martinez said. “They haven’t moved quickly to change their routine, but they have acknowledged the reality that we’re in.” (One bright spot: The justices and their clerks are now much better equipped technologically to work remotely than they were during Martinez’s clerkship in 2009 and 2010. In those days, he said, it was very difficult to work anywhere but at the court.)

Martinez isn’t expecting the court to rejigger the process of reviewing which cases to hear even if the justices end up hearing oral arguments over the summer, when the Supreme Court is usually on a long break. Supreme Court litigators typically try to avoid filing petitions before the court takes its summer break because those petitions pile up in advance of the justices’ opening conference in the fall. Martinez said there may be a bit more flexibility in the calendar because the Supreme Court has extended the usual 90-day deadline for filing petitions to 150 days. The court also said it will entertain motions citing delays attributable to COVID-19.

“I do think some litigants are going to have hardship,” Martinez said. “There are going to be a lot of good extension requests (for) more time because there’s this crisis happening.”