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Justices Follow New Two-Minute ‘Quiet’ Rule—But Just Barely (1)

Oct. 7, 2019, 6:44 PMUpdated: Oct. 7, 2019, 8:09 PM

The U.S. Supreme Court justices abided by their new guidance suggesting a two-minute quiet period at the start of advocates’ oral arguments, though some justices were quick to jump in at the two minutes’ conclusion.

The justices announced Oct. 3 that they would “generally” allow advocates to speak for two minutes before interrupting them with questions.

There’s evidence that the Roberts Court is the “hottest” Supreme Court bench in history, meaning that the justices speak more during oral arguments than previous courts.

Justice Ruth Bader Ginsburg, often the justice to kick off questioning during oral arguments, waited just seconds to ask the term’s first question after the light on the lectern indicated that the two minutes had expired.

“Well, before you do that, you’re relying on due process. And suppose a state decides it wants to rethink the insanity defense,” Ginsburg asked Sarah Schrup, professor at Northwestern Pritzker School of Law, in a case testing whether states can abolish the insanity defense.

Justice Sonia Sotomayor similarly waited mere moments after the second advocate, Kansas Solicitor General Toby Crouse, had used up his two-minute quiet period before speaking up.

Justices Elena Kagan and Brett Kavanaugh, who sit next to each other on the bench, could be seen chuckling after Ginsburg’s swift reaction.

The court’s new guidance also allows advocates to reserve rebuttal time prior to the argument. Previously advocates had to do so near the end of their typically 30-minute argument.

Elizabeth Prelogar, assistant to the solicitor general at the Department of Justice, also argued in support of the United States. Yet again, Sotomayor was first to get in a question after the “quiet time” had expired.

It was Ginsburg and Chief Justice John Roberts who broke the justices’ silence in the court’s second and third arguments of the day, each breaking into arguments twice.

Thomas Sick

Ginsburg, who was treated over the summer for pancreatic cancer, appeared strong and engaged during the court’s kick off argument.

Her colleague Justice Clarence Thomas, however, did not attend the first day of arguments because he was “indisposed due to illness,” Roberts announced at the beginning of the first argument.

Thomas has “flu-like symptoms,” a Supreme Court spokeswoman said.

Such absences are rare, but justices are still able to participate in the decision of a missed case by reviewing the oral argument transcript and related merits briefs.

The last time a justice missed an argument due to illness was in January when Ginsburg missed a two-week period after recovering from cancer surgery. It was the first arguments she’d missed since joining the court in 1993.

Breyer Anniversary

The beginning of the term marked Justice Stephen Breyer’s 25th on the high court bench, the chief justice said.

He said he looked forward to many more years with Breyer in their “common calling.”

The 81-year-old Breyer, along with 86-year-old Ginsburg, are the court’s oldest members. They were both appointed to the Supreme Court by President Bill Clinton.

A retirement from either could hand President Donald Trump his third Supreme Court nominee, and further shift the ideological center of the court for decades.

Neither have indicated that they plan to retire soon.

Roberts also noted the death of retired Justice John Paul Stevens over the summer.

Stevens was the third longest serving justice at the time of his retirement, serving from 1975 to 2010, Roberts said.

The 99-year-old jurist died July 16 in Fort Lauderdale, Fla.

— With assistance from Jordan Rubin

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com