US Supreme Court Argument Order Gives Unlucky Lawyers Less Time

By the time Daniel Geyser got to the Supreme Court lectern, he was getting hungry.

The banana and oatmeal the Colorado-based lawyer had eaten for breakfast around 8:30 that morning were long gone. The caffeine from his coffee had worn off.

Geyser hadn’t anticipated arguments in the case ahead of his on April 22 would go for almost 2 1/2 hours. He would have timed his breakfast better if he had.

“You ideally want to be awake,” he said.

The format the justices adopted after the pandemic stretched arguments to new lengths, but this term’s proceedings in the first case on a two-case day were routinely longer than those in the second.

When the first case of the day ran over the allotted time for arguments, it did so by nearly 34 minutes on average, according to a Bloomberg Law analysis. That’s compared to roughly 11 minutes, which is how much extra time the second case stretched for over the allotted time on average.

The disparity was much starker on days when a high-profile case was paired with one that was lesser-known. The difference was most severe on Geyser’s argument day when the questioning of an Oregon city’s attempt to punish homeless people for camping on public property went on for 2 hours and 26 minutes before his arbitration case, which lasted only 44 minutes.

“You have to feel bad for the advocates who come last and who have to face justices who are tired and have flagging attention spans,” said UCLA Law professor Adam Winkler, who’s an expert on the Supreme Court. “Supreme Court arguments are intense and the level of mental attention is very high.”

Second Place Setback?

The court typically reserves an hour for arguments in each case, but the court may schedule additional time on its own or if a party requests it. Attorneys are notified once their case is put on the argument calendar, which runs from early October through much of April.

Under the post-pandemic argument format, each advocate gets two minutes to argue uninterrupted before the justices jump in and start asking questions. After the attorney’s allotted time is up, Chief Justice John Roberts gives each justice a chance to ask as many additional questions as they’d like and he goes in order based on seniority.

“Several times when I’ve listened to oral arguments this term, I have thought to myself ‘Wow he’s really allowing the hearing to go on, and on, and on,’” Winkler said of Roberts.

Giving advocates a little more time on higher-profile cases isn’t in and of itself a mistake, Winkler said, but he noted that the court “is already engaged in a revolution in how it does oral arguments.”

“We’ve seen a lot of changes in the Supreme Court oral arguments in recent years,” he said. “The court would do well to space out its arguments, give itself rest time in between cases, and do more to make the process more effective.”

One Supreme Court advocate, who asked not to be named because they have matters pending before the court, said it might be a disadvantage to be the second case in a day if it results in less time.

“But I always would balance that against the idea that you are there to answer the questions the justices have and so if they’re able to be more focused in the second argument, maybe they accomplish what they need to accomplish more quickly and that can be OK,” the advocate said.

Oral arguments can be vital to a case because the justices use them to resolve factual ambiguities, explore legal tests, and consider the ramifications of potential rulings, Emory University School of Law professors Tonja Jacobi and Matthew Sag wrote in a 2023 study on Supreme Court interruptions.

While a case is argued ahead of the in-person proceedings in written filings and outside briefs, oral arguments give the justices a chance “to learn about each other’s views, potentially alter those views, and even engage in preliminary negotiations about a final decision,” they said.

And how a justice behaves during the argument can predict how they’ll vote, Jacobi and Sag found in a 2019 study.

“Each justice talks more during the time of the advocate that they ultimately vote against, so you can actually predict the outcome of oral argument pretty well based on the difference between who they talk most to,” Jacobi told Bloomberg Law.

Short Break Wanted

Differences in argument length may be due to the court scheduling more controversial cases for the first slot, Supreme Court advocates and legal scholars said.

The majority of the blockbusters this term, however, got their own argument day with no other case scheduled. Those included two abortion-related disputes, a challenge to Purdue Pharma’s $6 billion opioid settlement, and an appeal from a Jan. 6 Capitol riot defendant.

The justices try to schedule cases that deal with similar issues on the same day, advocates say. An example this term was on March 18 when the court heard two free speech cases. In the first, the Biden administration appealed a lower court’s decision to restrict its ability to contact social media companies and in the second, the National Rifle Association argued a New York state financial regulator had violated the First Amendment in trying to blacklist the gun rights advocacy group.

“They asked a number of questions in the first case they didn’t need to ask in the second case,” said David Cole, national legal director at the ACLU who represented the NRA in the second case.

Out of 20 double argument days, only four had cases that were related. Removing those disputes changes average lengths slightly. The first case ran 27 minutes and 30 seconds over the allotted time on average compared to the second case, which ran over by 9 minutes and 19 seconds on average.

“It seems like everyone could use a short break between the two cases,” Cole said.

Advocates in the second case of the day can leave the courtroom to use the bathroom, get a drink of water, or just stretch their legs while the first one is being argued. That’s guidance court Clerk Scott Harris gives at the start of the day and has for some time, Geyser said.

Still, the Haynes and Boone LLP partner wishes he had planned better for his argument day.

“Next time, when I’m second under the new format, I will start the morning with more coffee and a bigger breakfast,” Geyser said. “I might try to hide a banana in the court locker.”

Methodology: Using the time stamps on transcripts, Bloomberg Law calculated the average argument length for the first and second cases heard on double argument days, filtered out the cases that came in under the time allotted for the proceedings, and found how long arguments ran over on average.