US Supreme Court arguments are getting longer post-pandemic—and advocates like it.
Court closures prompted the justices to modify their questioning format, and some of those changes have remained as the justices have retaken the bench.
Last term, that resulted in more than 19 extra hours, equivalent to 18 extra minutes per argument and 28% more argument time overall, according to Goodwin’s William Jay, whose Supreme Court and Appellate Litigation team kept track of court’s new questioning format.
The stats for the latest sitting seem even more striking, Jay said. The justices averaged just under 28 extra minutes per argument over October’s eight arguments, with four cases nearing two hours.
Hogan Lovells’ Neal Katyal says the extra time “allows the justices to drill down on what is bugging them about a particular side’s argument.”
“I love the new format,” said Katyal, who argued his 46th high court argument in October.
Still, the extra time won’t necessarily affect who wins since justices usually say oral argument in general rarely changes the outcome, said Mayer Brown’s Timothy Bishop, who also argued during the court’s October sitting.
Pre-covid, the justices “would stick quite rigidly to the time allotted for argument,” Bishop said.
But starting in May 2020, the justices heard arguments via telephone. And with that change in venue came a change in questioning style.
Their normal free-for-all style, with the justices frequently interrupting each other, “would not work well” over the phone, Bishop said. So instead the justices switched to a seriatim format, where the justices took turns asking questions in order of seniority.
When the justices returned to the courtroom in October 2021, they adopted a hybrid style—with seriatim questioning starting at the end of the open-questioning round that once was the entirety of the argument, said Skadden’s Parker Rider-Longmaid, who made his Supreme Court debut Oct. 11.
And that’s what’s led to arguments that routinely go over the scheduled time.
Of the 163 lawyers who took the lectern last term, 86%—or 140—argued extra time due to the justices’ questions, Goodwin’s research shows.
Even as arguments this term continue to stretch out, the court continues to send out “amended” argument calendars reflecting orders allowing for additional time, which now seem more aspirational than compulsory.
Unsurprisingly, advocates enjoy the extra time to make their case.
The new format “allows for the scrum of questioning” and “picks up on the best part of the Covid questioning"—the seriatim inquiry, Katyal said. “It’s the best of every world.”
The hybrid format “gives the Justices more time to work through their concerns and react to each others’ views,” without committing “them to any particular length of time,” said Rider-Longmaid. “Overall, I think both the justices and advocates have reacted favorably to the new format,” he added.
The effect of the extra time on the bottom-line result, though, is still unclear.
Goodwin’s research shows that in “about 60% of cases, the winning side got more ‘extra time’ than the losing side.” But it also notes that the Supreme Court tends to reverse or vacate lower court opinions more often than it affirms.
“So it’s possible that the extra time tends to favor petitioners"—seeking to reverse the lower court’s judgment—"rather than winners, and that the justices lose some steam” by the time the respondents get their shot.
If things continue as they are, “the court might consider switching to a schedule with one case in the morning and one in the afternoon,” Bishop said, noting that the justices must be hungry after a two-hour argument that starts at 10 in the morning.
Ultimately, though, it is unlikely the new format will “make a difference in outcome very often, if at all compared to the prior format,” Bishop said.