Roberts Relaxes Argument Format in Rare Glimpse Of Old Style

Chief Justice John Roberts again relaxed a strict pandemic-era protocol enforced during remote oral arguments, and his colleagues seemed to appreciate it.

Roberts on Wednesday reverted to the freewheeling style of questioning that defined arguments before the pandemic forced the court in May to start conducting sittings over the phone in a rigid format.

It’s at least the second time Roberts, who controls the clock and the order of questioning, has ditched the turn-taking by seniority that’s been criticized by some in the legal community as diminishing the quality of arguments.

The justices, too, have appeared frustrated with the limited time each has to question an advocate—just two minutes.

Roberts on Wednesday didn’t preface his diversion with any explanation as the court heard argument in a Fourth Amendment case, Caniglia v. Strom.

And he may simply have been sensing impatience with the format after Justice Stephen Breyer seemingly refused to yield the floor to Justice Samuel Alito when told his time was up.

“Justice Alito,” Roberts prompted after Breyer’s time had expired.

Breyer kept talking.

It took two more “justice Alito’s” from Roberts to wrest the floor.

Roberts later opened things up.

“We’ve afforded your friends on the other side more time than anticipated, so why don’t you take up to 10 additional minutes for further questions or points you might like to make,” Roberts said to Skadden’s Shay Dvoretzky. “During that time, my colleagues, of course, are free to ask additional questions.”

“Well, Mr. Dvoretzky—this is just Elena Kagan,” she interrupted, asking a follow-up question.

“Counsel, could you, just back up a moment, because I think you blew past it pretty quickly,” Gorsuch chimed in.

Justices Sonia Sotomayor and Brett Kavanaugh joined the group before it was over.

In past arguments, Roberts has allowed the justices to take an additional round of justice-by-justice questioning. Such turns, however, have led to longer than usual argument sessions.

In-person arguments would typically last about an hour. This one took more than 100 minutes, even without the extra round of questioning.

There’s no word on when the justices will return to the courtroom but it probably won’t be this term for argument as they’re winding down the calendar of sittings. They’ve all received coronavirus vaccines.