Sotomayor First—and Second—Justice to Break ‘Quiet Time’ Rule

Justice Sonia Sotomayor twice violated the Supreme Court’s new guidance allowing attorneys two minutes of argument time before justices are allowed to jump in to ask questions.

The justices held their fire during the first six arguments of the term until Sotomayor was the first to violate the guidance Oct. 16. The court released the guidance Oct. 3, saying that the justices “generally will not question” lawyers during the first two minutes of their arguments.

“Even if they were applying to a college?” Sotomayor asked McDermott Will & Emery attorney Paul Hughes shortly after he took the lectern in an immigration preemption case asking when states can prosecute immigrants for information collected on employment verification forms.

Chief Justice John Roberts, whose job includes playing traffic cop during arguments, quickly jumped in. “I’m sorry. You can answer that question after your time has... ,” Roberts said.

“I’m sorry,” Sotomayor remarked as the chief justice trailed off.

The Roberts Court is one of the “hottest” benches in Supreme Court history, meaning that the current justices speak more during oral arguments than previous courts. Sotomayor is one of the court’s most active questioners.

She admitted Sept. 25 that collegiality can be challenging at times but said she’s “trying to bring it under control.”

Her problem is that she used to be a district court judge where she had her own “fiefdom,” she said. Now she’s one of nine.

In the second oral argument Oct. 16, a case dealing with the statute of limitations in Fair Debt Collection Practices Act cases, Sotomayor began to ask Jones Day lawyer Shay Dvoretzky a question early in his presentation.

This time she caught herself and Roberts didn’t intervene.