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Comment by kevincennis | Hacker News Reader

SCOTUS is weird.

I was an early employee of Aereo (the case mentioned in the article where Breyer went on about phonograph record stores), and I worked there when we were sued and ultimately won the appeal in the 2nd circuit, when we won in 1st circuit, when SCOTUS granted cert, and ultimately when we lost.

One of the strangest parts is that you have no idea when they'll issue your decision. They give a certain amount of advance notice that they'll be issuing decisions on certain days, but you don't actually know which decisions.

For a couple months after oral arguments, we had probably half a dozen mornings on pins and needles while we'd wait to find out if they're going to decide our case. It was really, really hard to concentrate on getting anything done.

Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.

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Note that the article takes Breyer's question about phonograph record stores way out of context: https://www.supremecourt.gov/oral_arguments/argument_transcr... (page 6).

Breyer asked:

> If we take the public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers giving a public performance?

The bit about "phonograph record stores" is actually referencing a hypothetical posed by Prof. Nimmer in a 1982 textbook, which addressed the 1976 Copyright Act amendments at issue in the Aereo case. That hypothetical came up in an amicus brief to the court: https://www.americanbar.org/content/dam/aba/publications/sup... (at 7-8).

Breyer is talking about phonographs because that hypothetical references phonographs (and everyone is trying to understand what Congress meant in 1976). Note that a few pages later, Justice Sotomayor asks the attorney to extend the hypothetical to Dropbox and iCloud.

It seems plausible to me that something similar was driving Alito's question about compact discs, which this article also derisively referenced. It sounds to me like he might have been attempting an analogy about physical media in order to find out if there were meaningful lines to be drawn between types of storage.

I think you are correct: https://www.supremecourt.gov/oral_arguments/argument_transcr.... Starting on page 17, the Justices are addressing the argument that California downloads everything on the phone, and that a smartphone has one's "whole life" on it. Justice Roberts asks "what if it's a FitBit and not a smartphone?" Justice Alito then raises the examples of a flip phone and then a CD.

> Another fun fact: Clarence Thomas has only asked 1 question during oral arguments in something like 10 years.

For context: Justice Thomas has explained that's because, based on his experience as a lawyer prior to being a judge, he always found it irritating when a judge would interrupt the lawyer, interfering with their ability to present their arguments in a linear fashion.

The oral arguments are also a lot less significant than people think. When justices ask questions, they're used more for signaling than anything else, because they're already briefed on the case beforehand.

That doesn't sound like a good reason. Linear, polished presentations of arguments are for briefs. Oral arguments are for probing the cracks in the rhetorical armor. One should not be using the limited time to help a lawyer recite what's on a page.

> Oral arguments are for probing the cracks in the rhetorical armor.

They're not, and as pointed out below, even Rehnquist stated as much.

For SCOTUS, oral arguments are a formality. That doesn't mean they're not valuable, but their value comes from formalizing the arguments for thr record, because by that point, most of the interrogation (both literal and figurative) of the arguments has already been done.

The OP misrepresents Rehnquist's opinion. See my reply with quote and citation.

Justice Thomas also broke a multi-year streak of silence to make fun of his alma mater, Yale. Playing the long game.

This is because oral arguments don't actually matter. Chief Justice Rehnquist makes this abundantly clear in his wonderful book The Supreme Court.

Maybe you're misremembering? This is what Chief Justice Rehnquist said,

  Speaking for myself, I think it does make
  a difference: In a significant minority of
  the cases in which I have heard oral
  argument, I have left the bench feeling
  differently about a case than I did when
  I came on the bench. The change is seldom
  a full one-hundred-and-eighty-degree swing,
  and I find that it is most likely to occur
  in cases involving areas of law with which
  I am least familiar.

  -- Rehnquist, William H.. The Supreme Court
  (Kindle Locations 4154-4157).[1]

Especially as politics and the law has become more partisan (ideologically if not according to party), of course oral argument will be less likely to change the ultimate judgment. But in a caselaw system as ours reasoning is nearly as important, and sometimes more important, than the particular judgment. Just look at the way the Federal Arbitration Act jurisprudence has played out. The most recent decisions are utterly divorced from the text and history of the relevant legislation and only make sense if you track the chain of reasoning in the preceding caselaw.

[1] I found that citation elsewhere and bought the Kindle book for the actual text. The original citation I found cited to page 243 of the print edition.

If they don’t actually matter, why have them?

Edit: some info presented further down

Ugh, I hated that opinion. I was rooting for you guys and the cable argument was BS. I have always wondered about the tech you guys have/had and if you could turn your experience into a antenna/DVR that is intended to fit in a Morphie sized case. Everyone loves streaming but getting a lot of the shows OTA instead of paying Hulu or live events seems like an interesting case. Quite possible you have issues getting the antenna that small but still usable, but anyway...

I still have a handful of the antennas in a closet somewhere. They really were about the size of a dime.

A bunch of us started a new company called Starry after the Aereo decision, and we're still doing some crazy RF stuff (although this time around, it's as a WISP rather than TV).

Cool! I'm not in Boston anymore but best of luck on the new project.

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