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Did a Supreme Court Justice Flush the Toilet During Oral Arguments?

Coronavirus social distancing has led to some pretty awkward moments in legal history, but so far nobody’s bar has measured up to this: during oral arguments in the U.S. Supreme Court, a toilet could clearly be heard flushing in the midst of a lawyer’s argument.

The lawyer was Roman Martinez, former clerk to current Justices Brett Kavanaugh and John Roberts. He was arguing a case centered on the Telephone Consumer Protection Act, which levies fines for robocallers who call or text without the permission of the phone’s owner. Fittingly, Martinez was arguing for the American Association of Political Consultants, a respondent in the case holding that the law is unconstitutional.

David Lat, if you had not heard of him, is a legal blogger who recently recovered from a very nasty bout of COVID-19 that landed him in the ICU. Again, it’s pretty apropos that he would be listening as the virus flushed the dignity of the nation’s highest court along with whatever else was in the bowl.

This all raises the rather obvious question of “who flushed?”

I have it on rather good authority that it wasn’t Martinez. That can only mean it was another person on the call, and the only people who would be able to speak, unmuted, would be the other lawyer arguing the case, and nine SCOTUS justices.

It’s almost certain that someone at the Court knows (or can with a high degree of guessology, guess) who it was, because someone was sitting at a console running the conference call, and that person likely knew who was muted–and who wasn’t.

Which leads us to the pertinent question: Did a Supreme Court Justice use the toilet during an oral argument, because on a conference call, there’s a lot you can get away with that you can’t do sitting on the bench in a black robe.

Given the secretive nature of the Court and its mandarins, we may never know for sure.

But one lesson in quarantine etiquette will forever live in legal archives: Don’t forget to “mute.”

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