Justice Samuel Alito had a lot to say and not much time to say it during the Supreme Court’s remote argument on counting undocumented immigrants as part of the census.
“I have two questions that are important to me,” Alito said. “I hope I’m going to be able to squeeze them both in in my time.”
After nearly three minutes, Chief Justice John Roberts interjected to say it was time to move on. Alito kept going for another minute—a lifetime in Supreme Court time—before ceding the virtual floor to Justice Sonia Sotomayor.
The exchange was one sign of how some of the justices are starting to chafe at the jury-rigged system for oral arguments adopted back in May when Covid-19 prompted the court to go to remote arguments by telephone. Free-wheeling exchanges have yielded to a more rigid format where each justice gets just a few minutes to ask questions in order of seniority. Gone is the verbal sparring in which the justices often talk to each other as much as to the lawyers arguing before them.
The format does make oral arguments less chaotic for the lawyers, and cases aren’t often decided on the basis of those anyway. But lawyers say it’s more difficult now to know if they are addressing the justices’ concerns — the whole point of oral argument. Without visual cues, they can’t see if justices are skeptical of their answers or seem convinced, or whether other justices seem to have questions but can’t ask them because it’s not their turn.
Some justices seem to be “growing frustrated with the format, and perhaps it is because they, too, realize what has been lost in depth and spontaneity,” said Lyle Denniston, a reporter and author who has been watching Supreme Court proceedings for more than six decades.
Frankly, if more Justices just plow ahead as Alito did, maybe someone smart is going to realize why this will never work. Put the Justices safe distanced in the chamber, with lawyers remote, and do it the way it used to be done: a real exchange, not nursery school taking turns.— Lyle Denniston (@lylden) November 30, 2020
University of Utah law professor RonNell Andersen Jones says the new format “absolutely cramps the style” of justices who tend to be the most aggressive questioners or interrupt most often.
One of them is Justice Stephen Breyer, who likes to use long, detailed hypotheticals when sparring with advocates. With the new format, his windup “tends to eat up his own time,” said ACLU’s Dale Ho, who argued remotely during the court’s most recent sitting in the latest census case to reach the court.
Lawyers arguing before the court have become accustomed to Roberts’ pleas to answer “briefly” or “very briefly” when justices were running over into a colleague’s allotted time. It happened twice during the December sitting, including to Supreme Court veteran Kannon Shanmugam after several extra back-and-forths with Breyer, despite Roberts’ attempts to move on to the next junior justice. It happened again to Acting Solicitor General Jeff Wall when Breyer’s questioning had taken him to the very brink of his time.
The next day the chief justice just cut Breyer off.
“Oh, by the way, the individual also—,” Breyer started.
“Thank you, counsel,” Roberts interjected. “Justice Alito.”
Besides making arguments disjointed and potentially incomplete, the court’s format changes “the way that the Justices tussle with them,” Jones said.
“In the in-person format, the Justices can build in real time on each other’s questions, concerns, and insights,” said Supreme Court advocate Jeffrey Fisher, who argued remotely before the justices twice in November. “That’s a lot harder in the more disjointed format.”
In the in-person courtroom, Roberts rarely has to interject to police his colleagues’ use of time, Jones said. Now, says Denniston, “he is making judgments on the fly, about when to cut off lawyers,” which gives him control over content as well as timing.
And in the courtroom, newer justices can interject at the moment their questions are most relevant, Jones said. Now they have to wait their turn.
“These folks can’t shape the direction of oral argument as they once could,” Jones said.
But the remote experience has had its benefits, too.
Justice Clarence Thomas once went 10 years without asking questions during oral arguments. Perhaps because he hasn’t had to push his way into arguments and is guaranteed an early opportunity to ask his questions, Thomas has done so in every remote argument so far.
Thomas “seems to have found his voice in the new telephonic setting,” Jones said.
Moreover, the move to the new format propelled the court to increase transparency.
Prior to the pandemic, the court only released a transcript on the same day of the argument—and then, only several hours after the case was submitted. The audio wouldn’t be released until days later.
For the first time ever, arguments are being livestreamed to the public.
“It has meant that scholars, commentators and journalists can report on the proceedings in real time, through live tweeting and other tools, and has meant broader access for law professors and civics teachers,” Jones said.
Fisher urged the justices to switch to Zoom arguments like other federal courts are doing.
“Virtually all other public and private institutions in the country—including many courts—have pretty seamlessly transitioned to conducting their business on videoconferencing platforms like Zoom,” Jones said.
But this is a court that acts with a great deal of caution, “so it is unsurprising that it would gravitate to old-school telephone at a moment when virtually everyone else is easily embracing Zoom,” Jones said.
If the justices don’t want to take that leap, randomizing the order of questioning might make arguments more fair and interesting, Jones said.
But again, “this is a body that relies heavily on seniority for a huge number of its other traditions and norms, and so I wouldn’t hold my breath for such a change.”