Long High Court Sessions Makes Advocates Happy, Stomachs Grumble

Eighty percent of Supreme Court arguments went over their allotted time this term, for an average of nearly 30 additional minutes.

The culprit is the pandemic-era shift away from the traditional free-for-all format that was largely time limited to a hybrid one that also includes a round robin.

Long gone are the days of Chief Justice William Rehnquist, who would “cut off people mid-syllable the very millisecond the argument was over,” said Haynes and Boone partner and Supreme Court advocate Daniel Geyser.

High court veterans overwhelmingly say they prefer elongated arguments, which allow them to speak at greater length with fewer interruptions from the justices. And though the longer arguments aren’t necessarily changing outcomes in cases, the opportunity for the justices to explore theories out loud could explain the proliferation of concurring and dissenting opinions, advocates say.

By The Numbers

Of the 59 arguments heard this term, only nine finished within five minutes of the allotted time. Just three went significantly under.

The remaining 47 cases went into overtime, though it varied from six minutes extra in the property rights case Wilkins v. US, to 93 additional minutes in Haaland v. Brackeen. That was on top of an already extended argument challenging a 1970s-era tribal adoption law, which was slated to last 100 minutes.

The spillover added 28 1/2 hours over the 63-plus hours of argument time anticipated.

Arguments have “changed pretty dramatically in the past couple of terms,” Geyser said.

Pandemic Shift

The shift began during the pandemic when the justices moved to hear arguments by phone in May 2020 and asked questions in turn for the first time.

The new format dramatically added to argument time and prompted greater participation by Justice Clarence Thomas. He became a regular questioner after decades staying mostly silent.

William Jay, who leads the Supreme Court and appellate practice at Goodwin, said that it’s not a trivial issue to get to speak with Thomas.

“I’ve argued five IP cases and Justice Thomas wrote the majority or the dissent in all of them,” Jay said. “And he’s never asked me a question.”

Being able to engage all the justices is really important, he said.

Fewer Interruptions

Now, the justices start with their typical free-for-all, where they can interrupt advocates and ask questions. That’s followed by the pandemic-induced round-robin series directed by Chief Justice John Roberts, who calls on justices in order of seniority.

“We have this sort of hybrid procedure that I actually think in many ways is the best of both worlds,” Geyser said.

Advocates say the free-for-all portion allows the justices to piggyback on each other’s questions and dig into an issue. Such a deep dive can test the limits of an advocate’s position to see if it can withstand scrutiny, Geyser said.

The individual questioning allows “each justice to pursue every line of inquiry that they might want to, even if one justice has a relatively idiosyncratic take on a case,” Jay said.

Combined, that’s led to fewer interruptions by the justices, and more complete answers by the advocates, he added.

Under the old format, when the court was strict about giving each side 30 minutes, the justices would break in while advocates were answering, US Solicitor General Elizabeth Prelogar said May10 at the Third Circuit Judicial Conference in Philadelphia.

From the perspective of an advocate, it made it harder to complete a thought or be responsive.

Now, the justices “are interrupting advocates responses less frequently than before—presumably because they know they will have the opportunity to ask any burning questions during the bonus round, even if the allotted argument time runs out,” Akin’s Pratik Shah said in an email.

It leads to a better process, Shah said, “even if stomachs might be grumbling by the end of the second case.”

Previous arguments were typically over by noon, even if there were two cases scheduled that day, which is often the case.

But back-to-back arguments Oct. 31 in the big affirmative action cases involving the University of North Carolina and Harvard went 121 minutes over the already extended 160 minutes scheduled. Total argument time was just under five hours.

That led to a logistical problem for Prelogar, who argued on behalf of the government in both cases. Both her mother and husband were there to watch, but they hadn’t anticipated the session ending just before 3 p.m. Someone had to pick up her kids from school, Prelogar said at the Third Circuit conference.

More Opinions

Less clear is the impact the extended time might have on case outcomes.

Jay suspects the proliferation of concurring and dissenting opinions this term is related to the longer length.

“Each justice has ample time to kick the tires on whatever theory they might want to use to resolve the case,” he said. And it appears they’ve been able to dig in deep enough to write them up as separate opinions, he said.

Adam Feldman, creator of the Empirical SCOTUS blog, noted that the three liberal justices were the most active questioners this term—and Ketanji Brown Jackson was the most talkative by far.

Jackson’s count of 78,800 words was 28,000 greater than the next closest justice, Feldman wrote.

Jackson spoke more than any justice has in the past two decades, Feldman said, which is as far back as he’s able to track based on the availability of argument transcripts.

He suspected that won’t translate into big wins for the liberal justices. Instead, speaking a lot at oral argument may be a means of taking control of the case when they can, Feldman said.

—With assistance from Madison Alder.