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The Supreme Court began hearing oral arguments for the fall term on Tuesday, the 10th term in which the current nine justices have been together. The justices, who have seen each other only sporadically since late June, sized up each other and the audience from the bench — and the audience looked them over too, searching for any apparent changes in health or vigor. Chief Justice William Rehnquist, who seemed frail on his feet Sunday at the annual Roman Catholic Red Mass held in the Court’s honor in Washington, D.C., appeared well and comfortable in the center seat at the Court. Justice Anthony Kennedy was on the bench, but his voice betrayed a bad cold, which had kept him away from the Mass and from Monday’s curtailed session. Justice Antonin Scalia was combative with lawyers, Justices Ruth Bader Ginsburg and Stephen Breyer were inquisitive, and Justice Clarence Thomas was silent. In other words, business as usual. The Court usually opens for business on the first Monday in October but, because of Yom Kippur, convened only briefly to issue orders and swear in bar members, with Jewish members Ginsburg and Breyer absent along with the ailing Kennedy. It marked the first time that the Court had officially acknowledged adjusting its argument calendar for the Jewish holiday. Two other slight shifts in Court policy also were launched with the new term, both suggesting the Court’s willingness to experiment with technology and with greater public access. Before the session began Tuesday, technicians were testing the Court’s sound system, which for the first time is making digital recordings of Court arguments — in addition to the reel-to-reel tapes used for the last 48 years. The test of digital recording is meant as a backup to the traditional system, which has produced low-quality recordings on occasion in recent years. “It’s a small step but an important one,” says Northwestern University political science professor Jerry Goldman, who first noticed the deterioration in sound quality and urged the Court to try digital taping. If the experiment is successful, Goldman, whose Oyez Project Web site carries audio of past Supreme Court arguments, believes the digital recordings will be much easier to work with and could be more quickly accessible to the public. The other development — this one on the Court’s Web site — will make available to the public the merits briefs in cases scheduled for oral argument. The Court still requires parties to file printed briefs, but also asks them or their printers to file them electronically as well. The electronic versions are being made available at www.supremecourtus.gov through a link to the American Bar Association’s publication Preview, which provides summaries and material on upcoming high court cases. “It’s a cool public service, and we’re glad to be able to offer it,” says Preview editor Charles Williams. The Court’s formal business began Tuesday with oral arguments in two cases involving state sovereignty: Frew v. Hawkins, No. 02-628, and Virginia v. Maryland, No. 129 Original. In Frew, the state of Texas argued that because of its 11th Amendment immunity, federal courts should not be able to force it to abide by a consent decree — even though Texas agreed to it in the first place. The decree at issue required improvements in the state’s Medicaid program, but a ruling could affect many other areas in which federal courts seek to enforce consent decrees against states. The justices seemed generally skeptical of the Texas position advanced by state Solicitor General R. Ted Cruz. Both Scalia and Sandra Day O’Connor asked why the federal government would enter into a consent decree if states could withdraw from it at will. The other case is a dispute, which has centuries-old roots, over the Potomac River. Maryland, which has owned the Potomac all the way to the Virginia shoreline for more than 300 years, objected when Virginia wanted to build a pipe into the middle of the river to draw drinking water for Virginia residents. Maryland said Virginia needed to obtain a permit from Maryland. A special master sided with Virginia, and the justices seemed to be sympathetic with Virginia as well. Virginia’s riparian rights, suggested Scalia, mean that Virginia “has a right to take water, not a right to beg Maryland to take water.”

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