Olivier Douliery/AFP/Getty Images
Justices of the United States Supreme Court, at least in modern times, have been known for their discipline when it comes to speaking. But lately, they’ve been talking and talking… and talking, sometimes more than double the amount of time allotted for oral arguments.
On paper, the arguments do not differ in length from decades past. In most cases, each side is allotted half an hour, or in some cases an extra five minutes; In extraordinary cases, where there are multiple major issues or multiple consolidated cases, the court will sometimes allocate more time.
The court has a mechanism to keep lawyers on track. To alert the lawyer when there are only five minutes left, a white light on the lectern comes on and a red light comes on when time is up.
Historically, the time for arguments has been reduced
Since the early days of the Republic, Supreme Court lawyers sometimes argued their cases for days. Not so in modern times. In 1925, the court imposed a time limit of one hour on each side. In 1970, Chief Justice Warren Burger set a shorter limit of half an hour per side, with additional time allotted in certain circumstances. The court has always been quite strict in enforcing allotted deadlines. In the 1980s and 1990s, then-Chief Justice William Rehnquist literally stopped lawyers in mid-sentence when the red light came on. His former clerk, current Chief Justice John Roberts, allowed a little more leeway when he succeeded Rehnquist in 2005, but no more than a few minutes.
Now the arguments are expanding
However, this period, while most cases were scheduled for a total of 60 minutes and three cases were scheduled for 90 minutes or slightly longer, the court, on average, for all cases, asked questions for 31 minutes in addition to the allotted time.
In addition, in important cases, the judges were lengthened, on average, by 80%. And with three sessions now completed, the trend continues steadily upward.
So what explains this change in behavior?
Basically, it goes back to the pandemic lockdown. Remember that the judges continued to hear arguments, but over the phone, because they felt that Zoom was not safe from intruders and crashes. But when they listen to arguments on the phone, they can’t see each other. So, to avoid the judges constantly interrupting each other, the cross-examination was conducted in order of seniority, with each judge allotted only a few minutes, rather than the usual brawling between all of them.
When they returned to the bench in 2021, they could now see each other again, but instead of going back to the old discipline, they began to talk more and more. And, the system that now exists in court is that for as long as you have a lawyer, say, half an hour, he or she faces the basic game that used to exist before the pandemic. But instead of oral argument ending there, the justices do a full second round, with each judge in order of seniority, followed by a final check by the chief justice to make sure his colleagues don’t have any more questions.
The numbers are quite staggering.
To get an idea of what it’s like, let’s take the last session where there were nine cases discussed over six days. Three were big cases: one related to the so-called theory of the independent state legislature; another related to public accommodation laws that require equal treatment for everyone, including same-sex couples, and a third was a major immigration case.
Although the previous two sessions also had significant cases, in this latest session, the numbers were the worst to date. The big arguments in the case lasted more than twice as long as scheduled. To be precise, a whopping 107% more than scheduled. The same-sex marriage case, with 70 minutes allotted for arguments, lasted instead for 141 minutes; the case of the independent state legislature, with 90 minutes allotted for arguments, lasted instead 174 minutes; and the immigration case, scheduled for the usual 60 minutes, ran a whopping 136 minutes.
In fact, as this reporter once quipped, “I heard there was a big disturbance this morning at Arlington National Cemetery…it was the late Chief Justice Rehnquist turning in his grave.”
But the truth is, while lengthy arguments make it much harder for reporters to meet deadlines, judges like it that way. They like that they don’t leave a discussion with some of their questions unanswered. And therefore, the presiding judge does not enforce clock discipline, even when the judges are more than an hour over their allotted time.