The Supreme Court of Justice returned to the e-person debate Monday in a day filled with big questions about how it comes to the effective voice, the case before the judges and the future of the court.
When Chief Justice John Roberts gave the new constitution at 10 am, it showed for the first time that the judges had been in the same room to hear cases within a year and a half. Judge Amy Coney Barrett was on the bench for the first time since his confirmation last year. And Judge Brett Kavanaugh is absent after a thorough review of COVID-19 last week.
One of the great unknowns about the future was that Judge Clarence Thomas did not become as vocal in his argument as the plague was. Justice has made clear his unwillingness to use the free-speech format used by the court before the trial, which is returning to the masses now for the judges to come back on their own.
But Thomas on Monday was the first justice to question a lawyer from Mississippi who said Tennessee is stealing groundwater from Mississippi. He challenged a lawyer over it that Tennessee pipes do not cross the border, but instead draw water from a well that flows between the two countries.
If the case were of a maritime border on the border, Thomas asked, “Can’t you doubt that an expert was drawing water from the Mississippi,” from a Mississippi point of view?
The other judges began to jump in as soon as Thomas finished his questioning with similar difficult questions.
The court ruled in favor of the newcomer to the conflict during the outbreak to prevent instability. But a recently released guide told lawyers to prepare multiple questions from judges and even cases in which judges could “ask questions before completing your answer to the first Judge.”
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Lawyers will have two minutes over their dispute to ensure that their points are not compromised in the free-of-all period. However, the order adds, “Once the attorney’s time expires, each Judge will have the opportunity to consult with each attorney.”
The combined format can cause some problems with Kavanaugh operating remotely because it contains COVID-19.
“I’m sure they’ll change the status quo, after carefully considering the structure they want,” Cato Institute Director Robert A. Levy Center for Constitutional Study Ilya Shapiro said. “It is possible that Justice Kavanaugh will show Chief Justice Roberts if they want to get into the ring, or just call the phone its spokesperson!”
Kavanaugh waited until the dispute was settled before asking the chief justice for an opportunity to consult a Mississippi lawyer. He asked Mississippi to answer the concens that several other countries had brought up briefly. During each post-Mississippi questionnaire, Kavanaugh asked a thought-provoking question on how the court should handle the case if Mississippi won where appropriate.
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While Monday’s early issues are not as interesting – the groundwater debate and the question of interpretation of the term in criminal law – judges are facing Shapiro’s claims that it could lead to a blockbuster term.
There is a major gun rights issue from New York, the second highest school election in three years, and the case of abortion from Mississippi that has the potential to overthrow Roe v. Wade, it depends on the behavior of the judges.
And all of this will be going on behind the scenes to persuade Judge Stephen Breyer to resign, to formulate a verdict from the left, a letter coming from President Biden’s commission in court, and a chance the Senate could change hands in the 2022 midterms.
“This promises to be a bigger voice than we did a few years ago,” Shapiro said. “Buckle up.”
Fox News’ Bill Mears and Shannon Bream contributed to this report.