The justices of the U.S. Supreme Court have, at least in modern times, been known for their discipline when it comes to talking. But of late, they have been talking and talking ... and talking, sometimes more than doubling the amount of time allotted for oral arguments.
On paper, the arguments are not different in length than in decades gone by. In most cases, each side is allotted a half hour, or in some cases five minutes more; in extraordinary cases, where there are multiple major issues, or multiple consolidate cases, the court will, on occasion, allocate more time.
The court has a mechanism to keep the lawyers on the straight and narrow. To alert counsel when there are only five minutes left, a white light goes on at the lectern, and a red light when time's up.
Historically, time for arguments has shrunk
Dating back to the early days of the Republic, Supreme Court advocates sometimes argued their cases for days. Not so in modern times. In 1925, the court imposed a time limit of an hour on each side. In 1970 Chief Justice Warren Burger put in place a shorter limit of a half hour on each side, with additional time allotted in certain circumstances. The court has always been quite strict about enforcing its allotted time limits. In the '80s and '90s, then Chief Justice William Rehnquist literally stopped lawyers mid-sentence when the red light went on. His one-time clerk, the current chief justice, John Roberts, allowed a tad more leeway when he succeeded Rehnquist in 2005, but not more than a few minutes.
Now arguments are expanding
Yet, this term, while most cases were scheduled for 60 minutes total, and three cases were scheduled for 90 minutes or slightly longer, the court, on average for all cases, asked questions for an additional 31 more minutes over the allotted time.
Additionally, in the big cases, the justices ran long by, on average, 80%. And with three sittings now completed, the trend continues steadily upward.
So what accounts for this change in behavior?
Basically, it dates back to the pandemic lockdown. Remember that the justices continued to hear arguments, but by phone, because they thought Zoom wasn't safe from crashers and crashing. But when you hear arguments by phone, you can't see each other. So, to prevent the justices from constantly interrupting each other, the questioning went in order of seniority, with each justice allotted just a few minutes, instead of the usual free-for-all.
When they returned to the bench in 2021, they could now see each other again, but instead of returning to the old discipline, they started to speak longer and longer. And, the system that now exists at the court is that for however long a lawyer has — let's say, a half hour — he or she faces the basic free-for-all that used to exist pre-pandemic. But instead of the oral argument ending there, the justices do a whole second round, with each justice going in order of seniority, followed by a final check from the chief justice to make sure his colleagues have no more question.
The numbers are pretty amazing
To get a picture of what it's like, let's take the last sitting in which there were nine cases argued over six days. Three were big cases: one involving the so-called independent state legislature theory; another involving public accommodations laws that require equal treatment for everyone, including same-sex couples, and a third was an important immigration case.
Although the two previous sittings also had major cases, at this last sitting, the numbers were the worst to date. The big case arguments lasted more than twice as long as scheduled. To be precise, a whopping 107% longer than scheduled. The same-sex marriage case, with 70 minutes allotted for argument, lasted instead for 141 minutes; the independent state legislature case, with 90 minutes allotted for argument, lasted instead for 174 minutes; and the immigration case, scheduled for the usual 60 minutes, ran a stupendous 136 minutes.
Indeed, as this reporter once joked, "I hear that there was a major disturbance this morning at Arlington National Cemetery ... it was the late Chief Justice Rehnquist turning over in his grave."
But the truth is that while the lengthy arguments make it much more difficult for reporters to meet their deadlines, the justices like it this way. They like that they don't leave an argument with some of their questions unanswered. And therefore the chief justice doesn't impose the discipline of the clock, even when the justices are more than an hour over the allotted time.
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