At the Supreme Court, it takes longer to hear cases
WASHINGTON — When attorneys plead in the Supreme Court, a small white light comes on to tell them when their time is almost up, then a red light signals when they should stop. But the arguments of this term extend far beyond the red light signal.
Arguments that usually lasted an hour in the morning have dragged on well beyond two, and on many days it is a long way until lunchtime before court breaks.
The lengthy arguments have to do with a change the judges have made to their style of argument, a change related to the coronavirus pandemic, leading the judges to ask more questions. Judges have said in the past that lawyers’ written briefs, not oral arguments, influence their decisions the most, so it’s unclear whether the extra time really helps them decide cases. Whether this trend will continue is also an open question.
In December, a row over whether a Colorado graphic designer can refuse to create wedding websites for same-sex couples lasted two hours and 25 minutes. And a major election case that was supposed to last an hour and a half was clocked in at two hours and 53 minutes. Already a handful of arguments have been longer than any argument the High Court has heard in the term that ended in June – and that term included major abortion and firearms cases. fire.
In the December 5 graphic designer’s case, Judge Neil Gorsuch engaged in friendly banter with lawyers about the length of arguments.
“Good morning, Mr. Olson,” Gorsuch said around 11:30 a.m., after the arguments lasted nearly an hour and a half.
“Is it still morning?” replied Colorado attorney Eric R. Olson.
“Hardly,” Gorsuch replied to laughter from the audience. “It shouldn’t feel like you’re standing where you are.”
“I’ve been here all day, Judge Gorsuch,” Olson said.
The reason why high court oral arguments are taking longer can be traced back to a change made by judges in 2020. After the pandemic began, judges decided to hold arguments over the phone and abandoned their typical questioning style. Instead, each judge was given a few minutes to ask questions in order of seniority.
When judges returned to in-person arguments in their courtroom more than a year and a half later, they returned to largely gratuitous questioning. Now, however, at the end of each lawyer’s time, the judges each have the opportunity to ask the remaining questions, again in order of seniority. That change led to an average of 18 extra minutes per case last quarter, said attorney William Jay, who tracked the extra time.
Jay said via email that the longest argument so far this quarter was a case involving the adoption of Native American children, which lasted three hours and 13 minutes. Jay said his feeling is that the judges seem more comfortable with the format of this term and the questions are longer. Judge Ketanji Brown Jackson, who replaced retired judge Stephen Breyer, is also a “considerably more active questioner” than his predecessor, Jay said.
According to Adam Feldman, the creator of the Empirical SCOTUS blog, Jackson spoke about 36,000 words this quarter while his most vocal colleague, Judge Elena Kagan, spoke only about 24,000.
The new judges’ format tripped up some lawyers used to the old way of doing business and moved to sit when the red light on their podium came on.
” Do not leave. Not so fast,” Chief Justice John Roberts told a lawyer who tried to sit prematurely.
Longer arguments are, in effect, a comeback for the court. Early in the court’s history, cases could take days to argue.
During the 1800s, when judges heard arguments from noon to 4 p.m. without a lunch break, tables were set up behind the bench and judges left one or two at a time to eat.
“The audience could not see them eating, but they could very distinctly hear the clanking of knives and forks,” wrote court history expert Clare Cushman.
The length of arguments decreased over the years until in 1970, under Chief Justice Warren Burger, it was increased to 30 minutes per side. The court’s website claims that is still the case. “As a rule, the Court holds two oral arguments each day starting at 10:00 a.m., each lasting one hour,” he said.
There’s no question of leaving the bench to eat during arguments these days, although judges sometimes bend down to use the bathroom. In October, when the court heard back-to-back arguments in two affirmative action cases, it paused briefly between cases. The court had scheduled two hours and 40 minutes of arguments in both cases. They took almost five hours.
That’s compared to an hour and 27 minutes for Bush v. Gore in 2001. In 2012, President Barack Obama’s health care law arguments lasted about six and a half hours over three days.
Chief Justice William Rehnquist, who served as chief from 1986 to 2005, was known to cut off lawyers and even other judges when the lawyer’s red light was on.
Seth Waxman, a veteran of more than 80 Supreme Court cases, once remarked that for Rehnquist, “The red light ended everything – absolutely everything.”
Roberts, who became chief after Rehnquist’s death, is less strict, but before the pandemic, arguments still typically lasted an hour.
In the graphic designer’s case, after the third and final attorney rose to argue, Gorsuch couldn’t help but backtrack on the length of the argument.
“I think after two hours — we’re now in the afternoon, by the way,” Gorsuch told Biden administration lawyer Brian Fletcher.
“Hello,” Fletcher replied.
It was only the first of two cases scheduled for the day.
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