Assessing the Supreme Court’s new oral argument format

When the coronavirus pandemic forced it to move to telephonic oral arguments last May, the U.S. Supreme Court adopted a new format. Each Justice, in descending order of seniority, was afforded three minutes to ask questions of each side. The result was much cleaner, and in many ways more interesting, that the conversational scrum that typically erupts at One First Street. Justice Thomas has come alive, knowing that he will be able to get a question out without interruption. And while more junior Justices have some of the wind taken out of their sails for having to wait their turn, some of the follow-up questions have proven to be equally interesting and clarifying.

Of course, not everyone is happy with the new format, and Bloomberg Law reporter Kimberly Strawbridge Robinson has been all over it. Last month, she explained that it has been harder for advocates and reporters to get a sense of what’s on the mind of Amy Coney Barrett, the juniormost Justice, since she is last in the queue to ask questions. And recently, she reported that many of the Justices themselves dislike the format, specifically because it stifles the freewheeling discussion to which they are accustomed. In particular, Justice Breyer, who likes to tease out lengthy hypotheticals during oral argument, has been frustrated to hear the Chief Justice say “your time is up” before the question is even complete.

I’m not sure there is an answer that will please everyone. My gut instinct is to extend the time for oral argument — there is nothing magical about 30 minutes per side — but that will probably just invite more palaverous and repetitive questions. What about submitting written questions to the parties after the argument? I’m just spitballing here. But having enjoyed getting to hear Justice Thomas’s thinking during telephonic hearings — not to mention the clarity of not having everyone talk over each other — I would hate to just have a knee-jerk reversion to the old system when the pandemic subsides.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s