{"id":98707,"date":"2024-12-30T11:01:53","date_gmt":"2024-12-30T19:01:53","guid":{"rendered":"https:\/\/xira.com\/p\/2024\/12\/30\/legalytics-deep-dive-2-the-changing-face-of-supreme-court-oral-arguments\/"},"modified":"2024-12-30T11:01:53","modified_gmt":"2024-12-30T19:01:53","slug":"legalytics-deep-dive-2-the-changing-face-of-supreme-court-oral-arguments","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2024\/12\/30\/legalytics-deep-dive-2-the-changing-face-of-supreme-court-oral-arguments\/","title":{"rendered":"Legalytics Deep Dive #2: The Changing Face of Supreme Court Oral Arguments"},"content":{"rendered":"

How \u2018hot\u2019 is the bench? Here are some data-driven answers.
\nThe post Legalytics Deep Dive #2: The Changing Face of Supreme Court Oral Arguments appeared first on Above the Law.<\/p>\n

\"Supreme<\/p>\n

(Photo by Collection of the Supreme Court of the United States via Getty Images)<\/p>\n<\/div>\n

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 1790s. 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 \u201chot bench\u201d and more recently the impact of the Covid-19 pandemic on oral argument practice.<\/p>\n

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\u2019s 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 \u201chot bench\u201d<\/a>\u00a0gained notoriety. Different permutations of justices have\u00a0changed the nature of the \u201chot bench\u201d<\/a>\u00a0since the 1980\u2019s.<\/p>\n

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\u00a0lengthy arguments<\/a>\u00a0in the\u00a0first Affordable Care Act case<\/a>\u00a0in 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\u00a0regular participant<\/a>\u00a0during 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.<\/p>\n

Joan Biskupic\u00a0wrote<\/a>\u00a0for CNN in 2022:<\/p>\n

\n

\u201cYet another Supreme Court case had gone nearly twice as long as scheduled \u2013 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.\u201d<\/p>\n<\/blockquote>\n

PBS News\u00a0reported<\/a> last year:<\/p>\n

\n

\u201cArguments that usually lasted an hour in the morning have stretched well beyond two, and on many days it\u2019s long past lunchtime before the court breaks.\u201d<\/p>\n<\/blockquote>\n

Professor William Baude\u00a0provided his thoughts for Reason<\/a>\u00a0on the turn taking approach:<\/p>\n

\n

\u201cIt 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\u2019t think that\u2019s been good for legislative committees and I don\u2019t think it will be good for the Court either.\u201d<\/p>\n<\/blockquote>\n

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.<\/p>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

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:<\/p>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

Another logical question is which justices have shifted their amount of speech over this period.<\/p>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

Interruptions have been examined in the past both as a general pattern, and in the context of attorneys\u00a0based on the genders<\/a>\u00a0of 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.<\/p>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

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.<\/p>\n

\n
\n
\n

\"\"<\/p>\n<\/div>\n<\/figure>\n<\/div>\n

\u00b7 Oral arguments are taking longer and there is no evidence that this will change soon.<\/p>\n

\u00b7 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<\/p>\n

\u00b7 Even if 2020 was an outlier term due to Covid-19, justices\u2019 interruptions of attorneys are way up since pre-Covid years although they\u2019ve shown a slight decrease over the past few terms.<\/p>\n

\u00b7 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\u2019 behavior these two show the most prominent changes.<\/p>\n

Some articles on the history of Supreme Court oral arguments (with quote snippets)<\/strong>:<\/p>\n