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A Supreme Court Reform We Can All Support

The justices changed their approach to oral arguments this term, to the benefit of everyone. But will they return to the dark ages once the pandemic subsides?

Erin Schaff-Pool/Getty Images

I spend a fair amount of time criticizing the Supreme Court and the justices. I’ll probably do so more often in the months and years ahead. So it feels almost strange to recognize them for doing something that is unambiguously good: revamping their format for oral arguments this term. The long-overdue changes to the most public part of their work are better for the lawyers, better for the justices, and better for the American public. Unfortunately, not all of these tweaks are guaranteed to stick around.

Few aspects of American life went unchanged by the pandemic, and the Supreme Court was no exception. Most of the justices worked remotely over the last two years; oral arguments took place by conference call for the first time ever. The ad hoc format wasn’t perfect. Like millions of Americans, the justices occasionally struggled to mute or unmute themselves at the right time. Exchanges became stilted and awkward. The strict time limits—and Roberts’ unyielding enforcement of them—sometimes squelched interesting lines of inquiry. “This harms equal status of each Justice, gives the [chief justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, [and] looks amateurish,” Lyle Denniston, the retired dean of the Supreme Court press corps, wrote on Twitter last year.

So what’s changed? First, the court set aside two minutes at the start of each lawyer’s presentation for them to summarize their position. This change was not so much for the benefit of the court as it was for the lawyers themselves, who used to be peppered with questions before they could finish their first few sentences. Second, the chief justice now asks each of the other justices in turn if they have any further questions before letting the lawyer finish. Every member of the court now gets a chance to ask their question uninterrupted. Third, and perhaps most important, the court maintained its lockdown-era practice of providing live audio of the oral arguments to the general public.

The result is a court that now operates at a much breezier pace. When the justices considered Texas’s controversial anti-abortion bounty law earlier this month, they spent roughly four hours discussing whether the federal courts could hear a constitutional challenge to the near-total abortion ban. Oral arguments in a major Second Amendment case lasted a leisurely two hours. Though I have not performed a statistical analysis of the last few months, my impression from the cases I’ve heard is that interruptions and interjections are less frequent, lawyers have more flexibility to give answers, and the justices have more space to make useful inquiries.

This shift is usually subtle, but occasionally more obvious. When the court heard United States v. Zubaydah in October, the justices mulled whether the government could invoke national security to stop a Guantanamo Bay detainee from subpoenaing his CIA torturers in a Polish criminal investigation. During the round-robin process towards the end of the session, Justice Neil Gorsuch raised a novel query for the Justice Department lawyer: Why not let Zubaydah himself testify in the inquiry to avoid this problem altogether? When he and other justices pressed the Justice Department’s lawyer about that solution, he promised to provide one after consulting with the rest of the executive branch. (The answer: Yes, but not in person and only after a “security review” of his declaration.)

Before this term, the court’s oral arguments were more cramped and somewhat less contemplative. Most cases received one hour on the schedule for deliberation, with thirty minutes set aside for each side. Some cases with three distinct parties—such as the solicitor general, who represents the Justice Department—would be divided even further or slightly enlarged to accommodate the other participant. Only in rare circumstances with particularly complex or high-stakes disputes would the court significantly add more time. When the justices heard their first case on the Affordable Care Act in 2011, they set aside a whopping five-and-a-half hours for all of the various parties to be heard.

The old format made it hard for all of the justices to equally participate and left some of them out altogether. For most of his tenure, Justice Clarence Thomas asked questions so rarely during oral arguments that it became national news whenever he broke his silence. He occasionally drew criticism from court-watchers for his perceived lack of participation, though Thomas said elsewhere that he found little utility in it. “I sat next to him for 27 years, you know, and I know he was thinking about these cases, and I know to a degree what his questions were, but he didn’t like interrupting people,” Justice Stephen Breyer told an audience at a book event earlier this year.

Those interruptions—a necessity of sorts for the justices to get a question in under the old format—also carried invisible costs. Drawing upon the court’s transcripts and other research, a 2017 law-review study found that the women justices were significantly more likely to be interrupted by not only the lawyers who argued before them, but also by the male justices participating alongside them. Justice Sonia Sotomayor recently credited that study with improving the other justices’ behavior—and with prompting Roberts to support changes to the oral-argument format.

The Supreme Court’s hour-long default format was itself a relatively new creation in the court’s long history. In the early republic, oral arguments were the primary means by which the Supreme Court heard and decided cases. They often involved presentations by multiple lawyers over the course of an entire day. The justices, for their part, either asked a few questions or none at all throughout the sessions. Sometimes these presentations could even turn into laborious multi-day affairs.

“In great cases such as Gibbons v. Ogden, in 1824, and Charles River Bridge v. Warren Bridge, in 1838, at least two counsel for each side argued for several hours, so that the court spent four or even five days listening to oral argument,” William Rehnquist, who served as chief justice from 1986 to 2005, wrote in a 1999 essay. “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, for example, argued in 1866, the oral arguments continued for six days.”

Why did they last so long? Practical reasons came first and foremost. Nineteenth-century Americans lacked laserjet printers, copy machines, overnight mail, or PACER, so the court had no reliable way to receive information about the case itself in advance. Rehnquist noted that it wasn’t until 1821 that the court required the parties to submit briefs, and even then they were largely focused on conveying the facts and record of the case from the lower courts. Only in 1884 did the court require parties to submit briefs containing arguments, and those briefs typically weren’t given to the justices until right before oral arguments well into the 1920s. “So well into the twentieth century the members of our Court derived their principal first impression of the case from the oral argument of counsel,” Rehnquist observed.

As the twentieth century went on, the Supreme Court’s habits changed. The court’s rising workload, which peaked at roughly 150 cases each term in the 1980s, made it less feasible to hold lengthy sessions for each case. The easy availability of the record from lower courts also made it less necessary for lawyers to recite the facts and history of each case. In the 1800s, the Supreme Court bar included great American orators like Daniel Webster. The cadre of Supreme Court lawyers who regularly appear before the justices today are also good at public speaking. But they are sought out more for their ability to read and influence the justices long before oral arguments begin. Written briefs are now the primary means by which litigants make their case to the court.

How the justices have approached oral arguments has also changed. I often note when covering oral arguments that the justices’ questions don’t always indicate how they’ll rule in a case. But they are still a crucial opportunity to see where the court may be leaning. Indeed, the justices themselves often use arguments as an opportunity to sound out where the rest of the court may stand and push them one way or another. Then-Justice Byron White once explained that the justices often use the questions to “clarify their own thinking and perhaps that of their colleagues,” and noted that they often “treat lawyers as a resource rather than as orators who should be heard out according to their own desires.”

Even though oral arguments are not necessarily the most important part of how the court decides cases, they are by far the most visible aspect of it. As I noted recently, those proceedings remained out of reach for the American people for most of the court’s history unless they happened to live in Washington, D.C., or had the means and ability to travel there. The justices resolutely oppose allowing cameras in the courtroom. They even resisted live audio until the pandemic forced their hand. The occasional release of same-day recordings served as their only concession to a case’s public significance in the Before Times.

The Supreme Court is not a democratic institution, of course, but it still exists in a democratic society. It’s highly unlikely that the court will abandon the opening-statement portion at the beginning of each argument, or that it will scrap the round-robin questions at the end. But the broadcasting of live audio is not yet guaranteed to be permanent. Roberts justified the move in September because the public can’t currently attend oral arguments. That implicitly leaves open the possibility that the court might end the practice as normal life resumes. That would be unfortunate for the country and the court alike. The Supreme Court, having invited the world into its oral arguments in real time, should not kick them out again—if not for the public’s sake, then for its own.