SCOTUS phone argument’s unresolved issue: Did someone flush?

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Was it the flush heard ’round the world? Or just some weird electronic noise that sounded suspiciously like a flushing toilet?

During United States Supreme Court oral arguments by telephone Wednesday, Lawyer Roman Martinez was responding to a question from Justice Elena Kagan, late in his argument for striking down a federal law barring robocalls to cellphones, when live audio picked up the familiar sound.

There was no word from the court on what exactly happened or, if it was a toilet, who may have flushed. The justices were on the line for nearly three hours Wednesday, but they did take a short break between cases. The court is hearing arguments remotely and live-streaming the audio in observing social distancing due to COVID-19.

Ajit Pai, chairman of the Federal Communications Commission, offered a humorous take on Twitter: “To be clear, the @FCC does not construe the flushing of a toilet immediately after counsel said ‘what the FCC has said’ to reflect a substantive judgment of the Supreme Court, or of any Justice thereof, regarding an agency determination.”

The court wrapped up its first week of arguments by telephone, with live audio available also for the first time, on Wednesday afternoon. Arguments by phone will resume Monday, and livestream audio will be available here. Next week’s cases are some of the highest-profile of the court’s term, including President Donald Trump’s efforts to shield his tax and other financial records and whether presidential electors must cast their Electoral College votes for the candidate who wins the popular vote in their state.

The three days of hearings this week were remarkably smooth, even as Justice Ruth Bader Ginsburg participated from her hospital room and Justice Stephen Breyer was briefly kicked off the line on Wednesday. The 87-year-old Ginsburg is being treated at a Baltimore hospital for an infection caused by a gallstone.

Breyer’s brief absence from the arguments came in a case about robocalls. When Breyer rejoined the call, he said he was cut off when someone had tried calling him. “The telephone started to ring, and it cut me off the call and I don’t think it was a robocall,” Breyer said when he rejoined.

The court Wednesday also heard arguments over Trump administration rules that would make it easier for employers to cite moral or religious objections in refusing to provide cost-free contraceptives to women, as required by the Affordable Care Act.

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