Supreme Court justices spent more time on arguments than in previous terms.
Olivier Douliery/AFP/Getty Images
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Olivier Douliery/AFP/Getty Images
Supreme Court justices spent more time on arguments than in previous terms.
Olivier Douliery/AFP/Getty Images
Justices of the United States Supreme Court are, at least in modern times, renowned for their discipline when it comes to speaking. But lately, they’ve been talking and talking…and talking, sometimes more than doubling the time allotted for argument.
On paper, the arguments are no different in length than in decades past. In most cases, each side has half an hour or, in some cases, an additional five minutes; In extraordinary cases, where there are several major problems or several cases grouped together, the court will, on occasion, grant more time.
The court has a mechanism to keep lawyers on the right track. To alert the lawyer when there are only five minutes left, a white light comes on at the desk and a red light when the time is up.
Historically, argument time has decreased
Since the early days of the Republic, Supreme Court lawyers have sometimes argued their case for days. Not so in modern times. In 1925, the court imposed a time limit of one hour on each side. In 1970, Chief Justice Warren Burger implemented a shorter limit of half an hour on each side, with additional time allowed in certain circumstances. The court has always been very strict about the application of time limits. In the 1980s and 1990s, Chief Justice William Rehnquist literally stopped lawyers mid-sentence when the red light ran. Its former clerk, current Chief Justice John Roberts, allowed a little more leeway when he took over from Rehnquist in 2005, but no more than a few minutes.
Now the arguments multiply
Yet this term, while most cases were scheduled for 60 minutes in total and three cases were scheduled for 90 minutes or slightly longer, the court, on average for all cases, asked questions for an additional 31 minutes during the allotted time.
Moreover, in large cases, judges ran long, on average, at 80%. And with three sessions now complete, the trend continues upwards.
So what explains this change in behavior?
Basically, it goes back to the pandemic lockdown. Remember that the judges continued to hear arguments, but over the phone, as they believed Zoom was not immune to crashes and crashes. But when you hear arguments over the phone, you can’t see each other. Thus, to avoid the judges constantly interrupting each other, the interrogations took place in order of seniority, with each judge having only a few minutes, instead of the usual free-for-all.
When they returned to the bench in 2021, they could now see each other again, but instead of going back to the old discipline, they started talking for longer and longer. And, the system that exists now in court is that, as long as a lawyer has – say, half an hour – he or she faces the basic freedom that existed before the pandemic. But instead of the argument stopping there, the judges do a full second round, with each judge going in order of seniority, followed by a final check by the chief justice to make sure his colleagues ask no more questions. .
The numbers are quite amazing
To get an idea of what it is, let’s take the last sitting in which nine cases were argued over six days. Three were important cases: one involving the so-called Theory of Independent State Legislature; involving another public housing law that requires equal treatment for all, including same-sex couples, and a third was a major immigration case.
Although the previous two sessions also saw major cases, in this latest session the numbers were the worst yet. The major pleadings lasted more than twice as long as expected. To be precise, a huge is 107% longer than expected. The same-sex marriage case, with 70 minutes allotted for argument, instead lasted 141 minutes; the Independent State Legislature case, with 90 minutes allotted for argument, instead lasted 174 minutes; and the immigration case, scheduled for the usual 60 minutes, lasted 136 minutes.
Indeed, as this reporter once joked, “I heard there was a major disturbance this morning at Arlington National Cemetery…it was the late Chief Justice Rehnquist who s went back to his grave.”
But the truth is that while long arguments make it much harder for reporters to meet their deadlines, judges like it that way. They like that they don’t leave an argument with some of their questions unanswered. And so the chief judge does not impose clock discipline, even when the judges are more than an hour over time.
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