Legalytics Deep Dive #2: The Changing Face of Supreme Court Oral Arguments – Above the Law

(Photo
by
Collection
of
the
Supreme
Court
of
the
United
States
via
Getty
Images)

Perhaps
more
than
any
other
Supreme
Court
tradition,
oral
arguments
have
gone
through
significant
changes
over
the
years.
The
Supreme
Court
is
as
old
as
the
nation
even
though
the
first
oral
arguments
were
not
held
until
the
1790s.
While
presently
it
may
feel
like
oral
argument
practice
and
procedure
are
relatively
static.
There
have
been
many
historic
changes
including
drastically
shortening
the
length
of
these
arguments.
Perhaps
two
of
the
greatest
modern
changes
to
Supreme
Court
oral
argument
are
the
emergence
of
the
“hot
bench”
and
more
recently
the
impact
of
the
Covid-19
pandemic
on
oral
argument
practice.

Oral
arguments
were
historically
a
time
for
attorneys
to
convey
the
important
points
supporting
their
positions,
and
for
the
justices
to
confront
these
points
to
focus
the
attorneys
on
areas
that
could
assist
with
decision-making.
Many
Court
watchers
have
pointed
to
the
emergence
of
Justice
Scalia
on
the
Court
in
the
mid-1980’s
as
the
point
where
the
Court
went
from
a
more
passive
receiver
of
information
to
a
more
active
forum
where
the
justices
limited
the
attorneys
to
answering
questions
rather
than
expostulating
on
points
the
attorneys
found
relevant.
This
is
where
the
phrase

“hot
bench” gained
notoriety.
Different
permutations
of
justices
have changed
the
nature
of
the
“hot
bench” since
the
1980’s.

The
other
phenomenon
has
to
do
with
argument
format
and
time.
Modern
Supreme
Court
oral
arguments
have
typically
run
an
hour
per
case
with
half
an
hour
per
side.
There
are
exceptions
to
this
rule
including
the lengthy
arguments in
the first
Affordable
Care
Act
case in
2012.
Covid-19
shifted
things
though
across
the
board.
Arguments
went
remote.
As
a
byproduct
and
due
to
the
inability
for
the
justices
to
see
one
another,
Chief
Justice
Roberts
began
calling
the
justices
to
speak
in
solo
turns,
which
was
a
big
change
from
the
free-for-all
that
existed
before
this.
This
turn
taking
had
unexpected
consequences,
including
leading
Justice
Thomas
who
was
almost
always
reticent
to
speak
during
oral
argument
since
he
joined
the
Court
in
1991,
to
become
a regular
participant during
these
proceedings.
Since
the
Court
has
gone
back
to
its
in-person
format,
the
vestige
of
turn
taking
has
remained,
as
now
arguments
have
turn
taking
and
free
form
components.
The
remainder
of
this
post
looks
at
how
these
transformations
have
shifted
the
nature
of
oral
arguments.

Joan
Biskupic wrote for
CNN
in
2022:

“Yet
another
Supreme
Court
case
had
gone
nearly
twice
as
long
as
scheduled
–
a
pattern
testing
the
nerves
of
the
justices
this
fall.
Some
exchange
glances
when
a
loquacious
colleague
engages
in
protracted
questioning.
Many
interrupt
answers
to
queries
simply
to
get
their
own
in.
Roberts,
in
the
center
chair
and
keeping
track
of
the
interjections
from
the
left
and
right,
often
looks
weary,
leaning
head
on
hand.”

PBS
News reported
last
year:

“Arguments
that
usually
lasted
an
hour
in
the
morning
have
stretched
well
beyond
two,
and
on
many
days
it’s
long
past
lunchtime
before
the
court
breaks.”

Professor
William
Baude provided
his
thoughts
for
Reason on
the
turn
taking
approach:

“It
makes
Supreme
Court
oral
arguments
sound
more
and
more
like
congressional
hearings,
where
each
member
is
really
just
waiting
for
their
turn
to
say
their
piece,
with
the
advocate
or
witness
an
incidental
prop.
I
don’t
think
that’s
been
good
for
legislative
committees
and
I
don’t
think
it
will
be
good
for
the
Court
either.”

The
arguments
have
gotten
considerably
longer
since
the
Covid-19
changes
to
argument
protocol
and
there
are
no
signs
that
this
will
change
anytime
soon.
Here
are
the
numbers
through
arguments
so
far
this
term.

While
this
impacts
but
the
time
justices
and
attorneys
speak,
the
time
differences
between
attorneys
and
justices
as
well
as
between
justices
and
other
justices
have
not
been
equal.
Here
is
a
look
at
how
the
split
times
for
attorneys
and
justices
have
changed
since
2010
in
absolute
terms:

Another
logical
question
is
which
justices
have
shifted
their
amount
of
speech
over
this
period.

Interruptions
have
been
examined
in
the
past
both
as
a
general
pattern,
and
in
the
context
of
attorneys based
on
the
genders of
the
interrupter
and
interruptee.
The
examination
below
is
agnostic
as
to
gender
but
looks
at
change
over
time.
Justice-to-attorney
interruptions
are
quite
frequent
and
have
increased
over
time.

Similar
to
talking
time
though,
behavior
in
this
mode
is
not
monolithic.
The
justices
engage
in
differing
amounts
of
interruptive
behavior
and
vary
in
this
respect
over
time.

·
Oral
arguments
are
taking
longer
and
there
is
no
evidence
that
this
will
change
soon.

·
Attorneys
are
speaking
more
on
the
balance
(than
the
justices)
since
the
2014
Term
but
this
ratio
is
about
on
par
with
where
it
was
in
2010

·
Even
if
2020
was
an
outlier
term
due
to
Covid-19,
justices’
interruptions
of
attorneys
are
way
up
since
pre-Covid
years
although
they’ve
shown
a
slight
decrease
over
the
past
few
terms.

·
Justice
Gorsuch
and
Kagan
are
both
speaking
more
and
are
jumping
in
more
frequently
while
attorneys
are
speaking.
Although
there
are
changes
in
the
other
justices’
behavior
these
two
show
the
most
prominent
changes.

Some
articles
on
the
history
of
Supreme
Court
oral
arguments
(with
quote
snippets):

In
his
article From
Webster
to
Word-Processing:
The
Ascendance
of
the
Appellate
Brief,
previous
Chief
Justice William
Rehnquist
charts
a
path
through
some
of
these
changes.
These
include:
- Until
  1821,
  the
  Supreme
  Court
  did
  not
  even
  require
  briefs
  from
  the
  parties.
- In
  1849,
  the
  Supreme
  Court
  adopted
  a
  rule
  limiting
  oral
  argument
  in
  each
  case
  to
  two
  hours
  per
  side,
  but
  exceptions
  were
  still
  made
  for
  very
  important
  cases.
- In Ex
  parte
  Milligan…argued
  in
  1866,
  the
  oral
  arguments
  continued
  for
  six
  days.
David
Frederick wrote (behind
a
paywall):
- In
  its
  first
  decade,
  the
  Supreme
  Court
  hewed
  to
  the
  English
  oral
  tradition
  of
  appellate
  litigation.
  As
  a
  practical
  matter,
  however,
  even
  that
  tradition
  was
  rather
  informal
  and
  somewhat
  irregular
  throughout
  the
  1790s.
- Hence,
  in
  1795,
  a
  change
  in
  the
  rules
  advised
  that
  “[t]he
  Court
  gave
  notice
  to
  the
  gentlemen
  of
  the
  bar,
  that
  hereafter
  [the
  Justices]
  will
  expect
  to
  be
  furnished
  with
  a
  statement
  of
  the
  material
  points
  of
  the
  case.
- During
  the
  Marshall
  Court
  years,
  the
  Court
  began
  a
  steady
  retrenchment
  away
  from
  unlimited
  oral
  arguments
  that
  stemmed
  from
  adoption
  of
  the
  rule
  in
  1792
  incorporating
  King’s
  Bench
  practice.
  In
  1812,
  the
  Court
  issued
  a
  rule
  limiting
  oral
  argument
  to
  only
  two
  counsel
  per
  side
- Over
  the
  next
  hundred
  years,
  the
  time
  allotted
  to
  oral
  argument
  would
  be
  shortened
  still
  further,
  from
  two
  hours
  per
  side
  to
  thirty
  minutes
  per
  side,
  which
  prevails
  today
  except
  in
  the
  most
  unusual
  cases.
Chief
Justice Roberts
noted (behind
a
paywall):
“the
sharp
decline
in
the
number
of
opportunities
for
lawyers
to
argue
before
the
Court
has
been
accompanied,
perhaps
paradoxically
or
perhaps
not,
by
an
even
more
dramatic
rise
in
the
number
of
experienced
Supreme
Court
advocates
appearing
before
the
Court,
both
in
absolute
terms
and
proportionately.”

*
Data
sources: Oyez oral
argument
transcripts
and Jake
Truscott’s
SCOTUSText package
in
R.

+263 242 744 677

4 Gunhill Avenue,

Legalytics Deep Dive #2: The Changing Face of Supreme Court Oral Arguments – Above the Law