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Off-the-Clock Questioning Made Supreme Court Arguments Longer

May 25, 2022, 8:45 AM

US Supreme Court oral arguments lasted 28% longer on average this term under a new round-robin format that advocates say reduced pressure and made the justices less inclined to talk over each other.

The court typically reserves an hour per case, split equally for attorneys from each side to answer questions and hammer out their main arguments. Instead of cutting off discussion when the clock ran out on the advocates, the justices were given an opportunity to ask additional questions.

Attorneys who regularly appear before the court said the new format in place for arguments from October to the end of April created a more relaxed discussion with the justices interrupting each other less even if it caused arguments to run well over the allotted time.

“The justices were less rushed,” said Beth Brinkmann, who’s argued 26 cases before the court and co-chairs Covington & Burling’s appellate and Supreme Court litigation group.

Competing for Airtime

During in-person arguments before the pandemic, it wasn’t uncommon for two justices to jump in and start asking a question at the same time.

“In the 30-minute format, on a case about which the justices are especially engaged, they tend to compete for airtime to try to make sure they get their questions in and answered,” said Donald Verrilli, a partner at Munger Tolles & Olson, who served as US solicitor general from 2011 to 2016.

“I am a fan of the off-the-clock questioning, and the reason is because it takes pressure off of the 30-minute format,” he said.

The new format added an extra 18 minutes and 17 seconds to each case on average, said William Jay, who leads Goodwin Procter’s Supreme Court and appellate litigation practice. He’s been keeping careful stats on both the length of each argument and the number of questions asked off-the-clock.

The court heard arguments in 61 cases this term and sessions went well over scheduled time in hot-button disputes on abortion and gun rights. Extra questioning also prolonged arguments in lesser-known cases that populate the docket. These included disputes over malicious prosecution lawsuits and state prosecutions of non-Indians, who commit crimes on American-Indian reservations.

Arguments ran longest in the two consolidated cases challenging whether to let President Joe Biden’s Covid-19 vaccine rule for large employers take effect. The court had allotted 60 minutes for arguments, but the discussion lasted for 2 hours, 8 minutes and 50 seconds.

Justice Brett Kavanaugh took the most advantage of the extra time. He asked at least one question of 60% of the advocates during off-the-clock questioning, Jay said in noting that some justices saved their longer queries specifically for that extra period.

In the extra time, the justices were allowed to ask as many questions as they wanted.

For the justices, that meant “you’re going to get to ask your question, so you don’t have to be quite as antsy to interrupt your colleagues or the advocate during the timed round,” Jay said.

Some advocates say the format could create a perception of unfairness if the government has intervened in a case in support of one party because then there could be extra questions asked of two advocates on the same side.

“I’m not actually sure that generates any unfairness in practice, but you could argue that it leads to the appearance of unfairness because one side is collectively getting more time than the other,” said Jeffrey Wall, a partner at Sullivan & Cromwell LLP, who served as acting US solicitor general and has argued 30 cases before the court.

But Wall noted that’s not always an advantage.

“If the court is skeptical of your position or has tough questions, then it can keep you up there for a really long time,” he said.

‘Invaluable’ Input

Fewer interruptions may be what’s kept Justice Clarence Thomas participating in oral arguments.

The court’s most senior associate justice had been known for his silence during court proceedings, having gone a decade—from 2006 to 2016—without asking a single question.

When the court moved from remote to in person arguments in October and added the round-robin portion, Thomas began asking the first question under a new format in which the chief justice called on each member of the court individually in order based on seniority.

“Justice Thomas believes, as far as I can tell, that this format is more respectful to each other and to the advocates, and he’s participating in oral argument in a way he did not before,” Wall said.

Thomas has said in the past that he thinks his colleagues ask too many questions, leaving too little time for advocates to make their arguments. Because Thomas has a unique perspective on the questions that come before the court, advocates say they want to know where he stands.

Of the five intellectual property cases Jay has argued at the Supreme Court, he said Thomas authored the majority opinion in three and the dissents in two.

“He’s never asked me a question,” he said. “The chance to engage with him on whatever his take on the case is and the chance to talk him out of what his initial take might be, or to respond to concerns that he has is invaluable.”

— With assistance from Kimberly Robinson.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com