The Changing Face of Supreme Court Oral Arguments [Deep Dive #2]
How “hot” is the bench? Here are some data driven answers
Background
Perhaps more than any other Supreme Court tradition, oral arguments have gone through significant changes over the years. The Supreme Court is as old as the nation even though the first oral arguments were not held until the 1790’s. While presently it may feel like oral argument practice and procedure are relatively static. There have been many historic changes including drastically shortening the length of these arguments. Perhaps two of the greatest modern changes to Supreme Court oral argument are the emergence of the “hot bench” and more recently the impact of the Covid-19 pandemic on oral argument practice.
Oral arguments were historically a time for attorneys to convey the important points supporting their positions, and for the justices to confront these points to focus the attorneys on areas that could assist with decision-making. Many Court Watchers have pointed to the emergence of Justice Scalia on the Court in the mid-1980’s as the point where the Court went from a more passive receiver of information to a more active forum where the justices limited the attorneys to answering questions rather than expostulating on points the attorneys found relevant. This is where the phrase “hot bench” gained notoriety. Different permutations of justices have changed the nature of the “hot bench” since the 1980’s.
The other phenomenon has to do with argument format and time. Modern Supreme Court oral arguments have typically run an hour per case with half an hour per side. There are exceptions to this rule including the lengthy arguments in the first Affordable Care Act case in 2012. Covid-19 shifted things though across the board. Arguments went remote. As a byproduct and due to the inability for the justices to see one another, Chief Justice Roberts began calling the justices to speak in solo turns, which was a big change from the free-for-all that existed before this. This turn taking had unexpected consequences, including leading Justice Thomas who was almost always reticent to speak during oral argument since he joined the Court in 1991, to become a regular participant during these proceedings. Since the Court has gone back to its in-person format, the vestige of turn taking has remained, as now arguments have turn taking and free form components. The remainder of this post looks at how these transformations have shifted the nature of oral arguments.
Timing
One thing is for certain: the new argument format leads to longer arguments. Don’t just take my word for it.
Joan Biskupic wrote for CNN in 2022:
“Yet another Supreme Court case had gone nearly twice as long as scheduled – a pattern testing the nerves of the justices this fall. Some exchange glances when a loquacious colleague engages in protracted questioning. Many interrupt answers to queries simply to get their own in. Roberts, in the center chair and keeping track of the interjections from the left and right, often looks weary, leaning head on hand.”
PBS News reported last year,
“Arguments that usually lasted an hour in the morning have stretched well beyond two, and on many days it’s long past lunchtime before the court breaks.”
Professor William Baude provided his thoughts for Reason on the turn taking approach:
“It makes Supreme Court oral arguments sound more and more like congressional hearings, where each member is really just waiting for their turn to say their piece, with the advocate or witness an incidental prop. I don't think that's been good for legislative committees and I don't think it will be good for the Court either.”
The arguments have gotten considerably longer since the Covid-19 changes to argument protocol and there are no signs that this will change anytime soon. Here are the numbers through arguments so far this term.
These point to a 40% increase in argument time from 2019 to the height in 2022. While there has been some drop off in the average argument time since 2022, the five minute on average decrease is still more than 20 minutes longer on average than arguments in 2019 (which in turn were the longest since prior to the 2010 Term).
While this impacts but the time justices and attorneys speak, the time differences between attorneys and justices as well as between justices and other justices have not been equal. Here is a look at how the split times for attorneys and justices have changed since 2010 in absolute terms:
The steady rise from 2019 through 2022 and then the slight drop to the present are visible for both attorneys and justices, although the rise for attorneys from 2020 through 2022 seems more pronounced, and the drop since 2022 in the amount of time taken seems less dramatic for justices than for attorneys. To focus in on the comparative angle though, the following graph presents in ratio form the changing fraction of time attorneys have taken (relative to the justices) during oral argument since the 2010 Term.
The relative amount of time attorneys speak fluctuated quite a bit from 2010 to 2015. The low point for the entire period and the only time the justices spoke more in the aggregate than the attorneys on average was in 2014. The biggest jump was from 2014 to 2015 where the attorneys moved the needle about 10% in their direction. Since then and especially since the onset of Covid in 2020 (the second part of the 2019 Term), the fluctuations have smoothed out to where attorneys are speaking just over 55% of the time.
Another logical question is which justices have shifted their amount of speech over this period.
While some justices have averaged similar amounts of speech over time, there are some that have clearly increased their amounts. In particular, Gorsuch and Kagan have upward slopes indicating increased participation over the years. Sotomayor has a rising pattern although it is less consistent, and Alito’s speaking time shows increases but to a lesser extent than for the previously mentioned justices. These changes are also in the shadow of Thomas’ participation, which goes from near zero to a measurable amount, thus taking potential speaking time from the other actors. Justice Thomas’ numbers are only based on cases where he spoke though. Even though Justice Jackson’s amount of speech has held relatively constant, she clearly spends the most time speaking of the justices and has done so since she joined the Court in 2020.
How “hot” is the bench?
The measures of speech above looking at the balance of talking time taken by the justices does not show any measurable increase since 2010. Still, the fact that the justices speak almost as much as attorneys shows that the justices feel compelled to interject quite frequently and sometimes for prolonged periods of time. Another way to frame the hot bench question though is by looking specifically at the interjections or interruptions, that is, when justices cut off attorneys mid-speech to guide the attorney in a new or different direction. This is typically shown on Supreme Court written transcripts as a double dash rather than a completed sentence to end a talking turn.
Interruptions have been examined in the past both as a general pattern, and in the context of attorneys based on the genders of the interrupter and interruptee. The examination below is agnostic as to gender but looks at change over time. Justice-to-attorney interruptions are quite frequent and have increased over time.
The lowest point of interruptions of attorneys was in the heart of Covid-19. Prior to Covid the numbers were relatively stable at around 50 per argument. Interruptions since the justices returned to the Supreme Court building post-Covid have shot up over 20 per argument more on average than prior to the 2020 Term.
Similar to talking time though, behavior in this mode is not monolithic. The justices engage in differing amounts of interruptive behavior and vary in this respect over time.
The greatest increase is from Justice Gorsuch whose number of interruptions doubled between 2020 and the current term. Justice Jackson’s average is up so far this term and Justice Kagan is tracking in a slightly upward direction. Justice Sotomayor’s numbers show a lot of noise but are generally up since 2010, the year after she joined the Court. Chief Justice Roberts’ averages are the only ones with a clear and steady downward slope both in general and since 2019 in particular.
Four Takeaways:
· Oral arguments are taking longer and there is no evidence that this will change soon.
· Attorneys are speaking more on the balance (than the justices) since the 2014 Term but this ratio is about on par with where it was in 2010
· Even if 2020 was an outlier term due to Covid-19, justices’ interruptions of attorneys are way up since pre-Covid years although they’ve shown a slight decrease over the past few terms.
· Justice Gorsuch and Kagan are both speaking more and are jumping in more frequently while attorneys are speaking. Although there are changes in the other justices’ behavior these two show the most prominent changes.
Some articles on the history of Supreme Court oral arguments (with quote snippets):
In his article From Webster to Word-Processing: The Ascendance of the Appellate Brief, previous Chief Justice William Rehnquist charts a path through some of these changes. These include:
Until 1821, the Supreme Court did not even require briefs from the parties.
In 1849, the Supreme Court adopted a rule limiting oral argument in each case to two hours per side, but exceptions were still made for very important cases.
In Ex parte Milligan…argued in 1866, the oral arguments continued for six days.
David Frederick wrote (behind a paywall):
In its first decade, the Supreme Court hewed to the English oral tradition of appellate litigation. As a practical matter, however, even that tradition was rather informal and somewhat irregular throughout the 1790s.
Hence, in 1795, a change in the rules advised that “[t]he Court gave notice to the gentlemen of the bar, that hereafter [the Justices] will expect to be furnished with a statement of the material points of the case.
During the Marshall Court years, the Court began a steady retrenchment away from unlimited oral arguments that stemmed from adoption of the rule in 1792 incorporating King’s Bench practice. In 1812, the Court issued a rule limiting oral argument to only two counsel per side
Over the next hundred years, the time allotted to oral argument would be shortened still further, from two hours per side to thirty minutes per side, which prevails today except in the most unusual cases.
Chief Justice Roberts noted (behind a paywall): “the sharp decline in the number of opportunities for lawyers to argue before the Court has been accompanied, perhaps paradoxically or perhaps not, by an even more dramatic rise in the number of experienced Supreme Court advocates appearing before the Court, both in absolute terms and proportionately.”
* Data sources: Oyez oral argument transcripts and Jake Truscott’s SCOTUSText package in R.
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