The Interdependent Third Branch
Tracking court organization, administration, structure, and strategy
From my web browser’s news feed this afternoon:
The Sotomayor story is somewhat intriguing in its own right, since the most obvious change in the Supreme Court’s post-pandemic non-interruption policy has been the emergence of a vocal and inquisitive Justice Thomas at oral arguments. One can only wonder what he might have asked over the past thirty years if he had not been swimming in the Court’s predominant ethos of argumentum interruptus.
The Supreme Court has announced that it will resume in-person arguments starting in October. The number of people in the courtroom will be strictly limited.
The Court will apparently continue to provide live audio of the oral arguments, a welcome bit of transparency. In addition to giving the public immediate access to hearings, the audio feed has been paired with text and photos of the Justices to allow students to more fully appreciate the flow of oral argument. (Click here, then on the “Oral argument” button on the left, for an example from oyez.org.)
The return to in-person arguments raises one other question: will the Justices continue to ask questions one at a time (in order of seniority), as they did during the pandemic-mandated telephonic hearings? Or will they go back to interrupting each other (and counsel) every chance they get?
My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.
The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.
These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.
I have been meaning to link to this wonderful SCOTUSBlog piece, in which courtroom sketch artist Art Lien captures attorneys conducting this past fall’s Supreme Court oral arguments from their home offices. The images alone give you an incredible glimpse into the variety of styles and philosophies. Some attorneys, dressed to the nines, stand at a podium in front of pristine surroundings. Others wear jeans and hoodies at their desks, surrounded by overflowing stacks of paper.
I always remind my Civil Procedure students that law school demands some sort of professional conformity, but that within those bounds they should never lose sight of their individual passions, personalities, and styles. These sketches are a terrific example of how confidence in your own style and successful lawyering can go hand-in-hand.
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.
It’s so great to have David Lat back with a guest post at Above the Law — not only because it’s a sign that he is recovering from his serious COVID-19 scare a few weeks ago, but also because he always adds desperately needed sensibility to a blog that has become virtually unreadable since he handed over the full-time reins years ago.
Lat comments on the recent round of telephonic oral arguments at the Supreme Court, and in particular the Justices’ stringently ordered questioning. Some prominent commentators have criticized the regimented process, arguing that it prevents cross-discussion and gives to much power to the Chief Justice, who acts as the moderator. But Lat points out that a more carefully ordered structure also has its advantages, and even notes that there is ample room for some middle ground:
Evidence that the new approach promotes rather than reduces equality among the justices: the active participation of Justice Clarence Thomas, who in the past has rarely asked questions during oral argument, but who used the more orderly format to raise a number of excellent and incisive points. The old format gave an unfair advantage to the most aggressive and obstreperous justices, while disadvantaging someone like Justice Thomas, a self-described introvert, as well as the female justices, who were frequently interrupted by their male colleagues. In other words, the new format is more fair to justices who aren’t white males.
But there is, as is often the case at SCOTUS, some room for compromise. My proposal (which I previously floated on Twitter): have one round of questions moderated by the Chief Justice, where each justice gets to have a say, then devote the remaining time to unstructured questioning.
Yes. Even with an institution as tradition-oriented and “small-c” conservative as the Supreme Court, there is a good chance that some of the changes necessitated by the coronavirus will stick when the pandemic is over. Lat offers good suggestions that the Supreme Court might well wish to take into account.
A guest post by Lawrence Friedman
Writing in The Hill, Jonathan Turley argues that, in the midst of the COVID-19 pandemic, government should not stop working simply because members of Congress or the U.S. Supreme Court cannot meet in person. He suggests, for example, that the Court could hold televised arguments with only counsel and the justices present. This is in contrast to Chief Justice John Roberts’s decision “to suspend all further arguments,” despite a docket of cases that Turley rightly characterizes as of “enormous national importance, from health care to gun rights to immigration.” As he puts it, “because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.”
Of course, there is nothing in the Constitution that prevents the Supreme Court from operating virtually or televising oral arguments—the framers could not have imagined modern communications technology. Rather, the obstacle today remains the justices themselves. As retired Justice Anthony Kennedy once observed, there is a concern that the justices would not be able to refrain from “saying something for a sound bite.”
But the justices are not the only ones worried about the effect of remote access to oral arguments. Responding to Turley, Jonathan Grove contends that, because “the judicial branch is the only branch for which rigorous argument is still the business of the day,” cameras would threaten to turn the Court’s work into “source material for our watered-down ‘infotainment’ industry and angry Twitter partisans.” Further, he insists that the Court’s work is not essential in a time of crisis: “With some notable exceptions, meeting the immediate needs of citizens is a job that falls to state and local governments and, to a lesser extent, the executive branch. … Our constitutional system will not collapse if [the legislative and judicial] branches end up having to take extra time off.”
The problem with Grove’s argument, at least as it applies to the Court, is that, while we expect and hope the resolution of the disputes before the justices will be appropriately deliberative and thoughtful, that does not mean the work is less urgent. As of this writing, we are awaiting further clarity on a wide array of issues currently pending, including cases addressing the scope of the president’s ability to withhold information from Congress. This is an issue of particular importance at the moment, not just as it relates to Congressional oversight, but more immediately as it concerns President Trump’s recent suggestion that he has no constitutional obligation to share with Congress certain information related to the allocation of million of dollars under the new federal economic stabilization law.
Moreover, there is something odd about the argument that, were the public to have access to oral arguments before the Supreme Court – arguably, the least influential part of the appellate process – neither the justices not the advocates before them would be able to resist the temptation to grandstand. Many state high courts have experimented with televising oral arguments, and there is no evidence that either the judges or the attorneys treat the occasion with less seriousness, or that it has affected the sense of decorum that traditionally attends appellate arguments.
At the end of the day, we have passed the point at which it can be denied that the Supreme Court and its decisions have become more central to American life than the framers could possibly have imagined. It remains for others to debate whether this is a salutary development. The federal government in the past century has evolved to operate in ways the framers did not explicitly contemplate. One result has been conflicts about the separation of powers between the legislative and executive branches, and between the federal and state governments, which lawmakers and citizens alike expect the Supreme Court to resolve—and this is not to mention the myriad and important individual rights issues on the Court’s docket.
To the extent the Court has become the decisionmaker of last resort, the American people would benefit from seeing at least a glimpse of the way in which it works. Such access might provide some assurance to citizens who may question the Court’s role, or the pledge of its members to resolve the matters before them based upon argument and reason, rather than partisan affiliation. In the end, opportunities for the American people to see for themselves what the justices do could well enhance the respect upon which the Court depends for its legitimacy.
Andrew Hamm of SCOTUSBlog has a great post on the effect of the U.S. Supreme Court moving to a slightly curved bench in 1971. Summarizing a fascinating new article by Ryan Black, Timothy Johnson, and Ryan Owens in the Journal of Supreme Court History, Hamm relates how Chief Justice Warren Burger ordered the previously straight bench to be curved “so each Justice could see his colleagues.” Empirical study shows that the change led to a substantial reduction on Justices interrupting each other, with a particular benefit for the most junior Justices — who for the first time could be seen by all their colleagues on the bench.
The Legal Intelligencer reports that only 17.5% of federal appellate cases decided on their merits were disposed of after oral argument in 2015-16, the most recent statistical year available. Put another way, nearly five out of every six cases that are filed in the U.S. Courts of Appeal are decided without any sort of oral hearing. That is a significant drop: ten years ago, nearly 26% of cases received an oral hearing before disposition. Twenty years ago, the number was better than 40%.
The decline in hearings at the appellate level is, unfortunately, representative of a larger trend. A few years ago, Judge William Young (D. Mass.) and I examined the time that federal district judges spent on trials and courtroom hearings — a statistic we called “bench presence” — and found a year-over-year decline from FY2008 through FY2013. By 2013, federal district judges — our trial judges! — reported spending about only 2 hours a day on average in the courtroom.
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