Supreme Court (mostly) returns to the courtroom for first time since COVID-19 pandemic began

John Fritze

WASHINGTON – Consider it another milestone on the nation's journey back to normal: The Supreme Court returned to in-person oral arguments Monday for the first time since the COVID-19 pandemic began.

Seventeen months after the high court convened by telephone for the first time in its 230-year history in response to the pandemic, the justices filed back into the courtroom and their seats as they kick off a new term fraught with controversial issues such as abortion, gun rights, religion and the death penalty.

Most them, anyway. Because Associate Justice Brett Kavanaugh tested positive for COVID-19 on Thursday, he took part remotely – his voice piped into the courtroom, a reminder that not even the top levels of the federal government are yet completely out of the woods. Kavanaugh remained symptom-free Monday, the court said, and there was no indication of illness as he peppered attorneys with questions through a speaker. 

Roughly 85 people, including journalists, law clerks, support staff and the justices themselves sat in the courtroom, with journalists spaced apart in the public gallery rather than their usual spot off to the side of the courtroom. Associate Justice Sonia Sotomayor wore a dark mask – the only justice to do so – and everyone else in the room donned a face covering except whichever attorney was presenting at the moment.

The table from where attorneys argue had been pushed back from the justices. 

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Aside from those changes, the court seemed eager to present business as usual. Chief Justice John Roberts made no mention of the circumstances or the significance of the court's return – other than to note Kavanaugh would participate remotely. 

"I have the honor to announce on behalf of the court that the October 2020 term of the Supreme Court of the United States is now closed," Roberts began. "And the October 2021 term is now convened." 

WASHINGTON, DC - OCTOBER 04: A pro-choice activist is arrested during a demonstration outside of the Supreme Court on October 04, 2021 in Washington, DC. The Supreme Court's new term, which started today is expected to take up contentious issues including an abortion rights case that is a direct challenge to Roe v. Wade. (Photo by Kevin Dietsch/Getty Images) ORG XMIT: 775719819 ORIG FILE ID: 1344776713

The court then eased back into its in-person work with two rather technical cases: One involves a dispute between Mississippi and Tennessee over a shared aquifer. The other dealt with whether a man who robbed 10 separate units at a Georgia storage facility in 1997 committed 10 separate offenses or just one for purposes of his sentencing. 

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The justices saved their sharpest questioning in the water case for Mississippi, which claims Tennessee is pumping out water that, in fact, is under Mississippi's control.

"You've been litigating this case for 16 years," Sotomayor pressed the attorney for Mississippi. "When is enough enough? When should you be stopped?"

The complicated legal questions presented by a scarce natural resource led the justices to contemplate some unusual hypotheticals: Roberts asked which state would have control of a herd of wild horses crossing back and forth over a border. Associate Justice Stephen Breyer at one point questioned whether California would be harmed if another state captured some of San Francisco's fog for itself. 

The Supreme Court is seen on the first day of the new term as activists opposed to abortion demonstrate on the plaza, in Washington, Monday, Oct. 4, 2021. Arguments are planned for December challenging Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court's major decisions over the last half-century that guarantee a woman's right to an abortion nationwide. (AP Photo/J. Scott Applewhite) ORG XMIT: DCSA109

Neither case is likely to draw much attention, as the court's first day belied some of the blockbuster issues it must confront on the not-too-distant horizon. In December, the justices will hear a significant challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy. Next month they will discuss a lawsuit over New York's requirements for a concealed handgun permit in a case that could affect gun laws across the nation. 

Though the Mississippi abortion case won't be argued until Dec. 1 and won't be decided until next year a group of anti-abortion protesters were already gathered outside the Supreme Court building on Monday. Some held signs and others sang. A pro-abortion rights protester walked silently back and forth in front of the court in a red robe of the kind worn in the television adaptation of Margaret Atwood's "The Handmaid's Tale."

Switching to virtual argument was a major adjustment for a court that has largely shunned technological advancements adopted by other branches of government. For one thing, Associate Justice Clarence Thomas – who had rarely spoken during oral argument in the years before the pandemic – emerged as an active participant, offering up questioning that frequently drove the debate for his colleagues.

Thomas continued to play an active role Monday, starting off the questioning of both attorneys in the water case.  

"You seem to complain about Tennessee pumping water from Mississippi," Thomas asked Mississippi's attorney. "But you admit that Tennessee does not enter across the border into Mississippi. Isn't that correct?"

The audio-only sessions that began last year also raised questions among advocates for more transparency about whether the court would continue to stream its arguments once the pandemic is over. For now, the court has committed to continuing to provide live streams at least through December.

One holdover from the pandemic: The justices changed up their argument format, continuing the free-for-all questioning that is a hallmark of the court's process but holding a second round in which the justices were permitted to ask questions in order of seniority. Only a handful of justices took advantage of the second round.   

All nine justices were fully vaccinated months ago and had been holding in-person meetings to discuss cases since earlier in the year. The court has provided scant detail about Kavanaugh's positive test, declining to answer whether he received a follow-up test or how he might have been exposed to the coronavirus.