WASHINGTON (AP) — When attorneys argue in the Supreme Court, a small white light lets them know when their time is almost up, and then a red light signals when they should stop. But the arguments about this term go far beyond the buzzword of the red traffic light.
Disputes that typically lasted an hour in the morning have dragged on for well over two hours, and on many days it is well past lunchtime before the court break.
The lengthy arguments have to do with a change the judges made to their argumentation style, a shift related to the coronavirus pandemic that is causing the judges to ask more questions. Judges have said in the past that attorneys’ written briefs rather than oral arguments influence their decisions the most, so it’s unclear whether the extra time really helps them decide cases. It is also unclear whether this trend will continue.
In December, a dispute over whether a Colorado graphic artist can refuse to create wedding websites for same-sex couples lasted two hours and 25 minutes. And a key election case scheduled for an hour and a half lasted two hours and 53 minutes. Already, a handful of arguments were longer than any argument the Supreme Court had heard in the term that ended in June — and that term included important cases on abortion and guns.
In the graphic artist’s case, Judge Neil Gorsuch had a friendly banter with attorneys on December 5 about the length of the arguments.
“Good morning, Mr. Olson,” Gorsuch said around 11:30 a.m. after the altercation had lasted nearly an hour and a half.
“Is it still morning?” replied Colorado attorney Eric R. Olson.
“Just barely,” 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 arguments are taking longer in the High Court stems from a change judges made in 2020. After the pandemic began, judges chose to conduct arguments over the phone, abandoning their typical style of questioning for everyone. Instead, each judge was given a few minutes to ask questions in order of seniority.
When the judges returned to personal arguments in their courtroom more than a year and a half later, they returned to largely open questioning. Now, however, at the end of each attorney’s term, the judges each have an opportunity to ask any remaining questions, again in order of seniority. That switch resulted in an average of 18 extra minutes per case over the last term, said attorney William Jay, who is tracking the extra time.
Jay said via email that the longest dispute so far this term was a case involving the adoption of Native American children, which lasted three hours and 13 minutes. Jay said he feels the judges seem more comfortable with the format this term and that the questions are longer. Justice Ketanji Brown Jackson, who replaced retired Justice Stephen Breyer, is also a “significantly more active questioner” than her predecessor, Jay said.
According to Adam Feldman, creator of the Empirical SCOTUS blog, Jackson has spoken about 36,000 words this semester, while her most vocal colleague, Judge Elena Kagan, has only spoken about 24,000.
The judges’ new format brought down some lawyers used to the old way of doing business and sat down when the red light came on on their podium.
“Do not go. Not so fast,” Chief Justice John Roberts said to an attorney trying to sit down early.
Protracted disputes are indeed a reward for the court. At the beginning of court history, it could take days for cases to be heard.
In the 18th century, when judges heard arguments from noon to 4 p.m. without a lunch break, tables were set up behind the pew and the judges left one or two at a time to eat.
“The audience could not see them eating, but they could hear the clatter of knives and forks very clearly,” wrote court history expert Clare Cushman.
The length of the arguments shrank over the years, until it was 30 minutes per side in 1970 under Chief Justice Warren Burger. The court’s website claims that is still the case. “Usually the court holds two arguments each day starting at 10:00 a.m., each lasting an hour,” it says.
Nowadays, one is no longer allowed to leave the bench to eat during an argument, although judges sometimes duck to go to the toilet. When the court heard arguments in two back-to-back affirmative action cases in October, there was a short break between cases. The court had scheduled two hours and 40 minutes for the hearing in both cases. They took almost five hours.
That compares to an hour and 27 minutes for Bush v. Gore in 2001. In 2012, arguments over President Barack Obama’s health care law spanned about six and a half hours over three days.
Chief Justice William Rehnquist, who was Chief Justice from 1986 to 2005, was known for shutting down attorneys and even fellow judges when the attorney’s red light went on.
Seth Waxman, a veteran of more than 80 Supreme Court arguments, once observed that for Rehnquist, “The red light ended everything—absolutely everything.”
Roberts, who became boss after Rehnquist’s death, is less strict, but before the pandemic, arguments generally lasted an hour.
In the graphic designer’s case, Gorsuch couldn’t resist reconsidering the length of the dispute after the third and final attorney stood up to argue.
“I think at the end of two hours — we’re in the afternoon now, by the way,” Gorsuch told Biden Administrative Attorney Brian Fletcher.
“Good day,” Fletcher replied.
It was just the first of two cases scheduled for the day.
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