During telephonic oral arguments, the Justices will ask questions "in order of seniority"

The Chief Justice will go first, then Justice Thomas will waive his time, then Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh

|The Volokh Conspiracy |

Today the Supreme Court announced how it will handle oral arguments during the telephonic sessions next week:

At 10 a.m., the Justices will enter the main conference call, and the Marshal of the Court, Pamela Talkin, will cry the Court. The Chief Justice will call the first case, and he will acknowledge the first counsel to argue. Following the usual practice, the Court generally will not question lead counsel for petitioners and respondents during the first two minutes of argument. Where argument is divided and counsel represents an amicus or an additional party, the Court generally will not ask questions for one minute. At the end of this time, the Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority. If there is time remaining once all Justices have had the opportunity to question counsel, there may be additional questioning.

The Justices no doubt chose this approach to avoid interruptions and cross-talk. They preferred to allow each Justice to ask as many questions as he or she deems fit. And it makes sense to allow Justices to speak in the order of seniority. The Supreme Court holds conferences in the same order: first the Chief Justice speaks, then the senior associate Justice (Thomas), then Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. (I reversed this sequencing in my first book Unprecedented; relying on incorrect information, I wrote that the junior justice speaks first.)

The dynamics for these new arguments will be very, very different. The Justices frequently interrupt advocates, and interrupt each other. And the questions from one Justices may inform the questions another Justice poses. But this stilted approach will eliminate that spontaneity. The Chief will speak first, without having the benefit of knowing what his colleagues will ask about.

Though, on this Court, the Chief is the new swing vote. It actually makes the most sense for the other justices to listen to his questions most carefully. Imagine if Justice Kennedy would have been allowed to ask all of his questions at the outset? AMK would often save his most pressing questions till the end of arguments. Advocates could have completely reworked their presentations to appeal to the only vote that actually was in play. Therefore, my prediction is that Roberts will ask zero questions during the important Trump-related cases. He has taken this path before. In at least one high-profile case (I am blanking on which one), Roberts was silent.

The Court's announcement explained that counsel for petitioners will "allotted three minutes for rebuttal." The Court did not say that arguments-in-chief were limited to twenty-seven minutes. And "If there is time remaining once all Justices have had the opportunity to question counsel, there may be additional questioning." Here, the cross-talk may commence. In theory, the arguments will go as long as questions remain. Here, we have something of a tragedy of the commons. If each Justice asked about 3 minutes of questions, the session would wrap up in twenty-seven minutes. Do I expect the Justices to exercise such self-control?

Absolutely not. I'm looking at you Steve. I have long-blogged about #BreyerPages, in which Justice Breyer speaks for an entire page, uninterrupted. In the New York Census case, for example, Justice Breyer asked SG Francisco a single question that spanned four minutes.  (My colleague Steve Vaughn maintains a detailed spreadsheet). I hope Justice Breyer exercises some self-control.

I suspect in some cases, the questioning will take the tone of a cross-examination, or even a deposition. At some point, the Chief may intervene. Or maybe he will have some secret backchannel to notify his colleagues that it is time to move on. A gong could also work.

One more note. I expect the Justices who vigorously oppose cameras in the Court to also remain silent. They do not want to give live-tweeters any fodder for instant reactions. Therefore, Justice Alito may also stay mum. Then again, maybe Justice Thomas will surprise us.

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  1. “The Chief Justice will go first, then Justice Thomas will waive his time”

    I greatly enjoyed that line. It’s be even more amusing if suddenly in this format Justice Thomas asked several questions. But still….

  2. My question is will Thomas have to speak to waive his time?

    1. heh

    2. It will be assumed under longstanding precedent. And who would overturn precedent…

  3. I know its a given that you’re technically inept if you’re a SC Justice but don’t they all have underlings at their houses that could set up a video conference and manage it to where they can pretty much all act like they already do? No need for turns or anything.

    1. I assume they have deliberately chosen not to use video because they don’t want to create the possibility of the video being leaked, not because they don’t know how to do it. (I would add that trying to watch 9 other speakers on a split screen is still a lot, although obviously it’s easier than trying to do it over the phone.

      1. Heck, they’re not poor, they could set up 9 wide screen TVs, one for each other speaker.

        No, I think you’re right. They’re just doing it in this awkward way to avoid creating a video record. Which is a really, really stupid reason to do it that way.

        1. they could always leak the audio.

        2. Brett,

          Do you truly not understand that having SCOTUS hearings on video would mark the End of Civilization as We Know It?

          What are you thinking?

          1. I suspect televised oral arguments is one of those areas where we’d probably find plenty of left-right agreement here.

  4. I think its fascinating how the change to electronic venue might influence what gets asked and by who.

    I listen to every oral argument audio when they are released (I do that at bedtime. The boring cases make great lullabies. The few exciting ones keep me awake for hours.) I’ll listen to these telephonic arguments too and see if I can detect the change.

  5. “…then Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kagan.”

    Surely you mean Kavanaugh? Or does Kagan get to go twice?

    1. She should. She asks some of the best questions.

  6. (I reversed this sequencing in my first book Unprecedented; relying on incorrect information, I wrote that the junior justice speaks first.)

    I was taught this as well — and not by you.

    Did it used to be that way?

    1. I don’t know about the Supreme Court, but in the Sanhedrin, the rule was that the judges spoke in decreasing order of seniority except in capital cases, where the order was reversed.

    2. According to

        The Brethren

      , the practice used to be to speak in order of seniority (starting with the Chief Justice) and then for justices to announce their votes in the opposite order (starting with the most junior justice), but then the justices took to stating how they would vote during the speaking phase and hence the separate voting phase was omitted as an unnecessary formality. So the notion that the junior justice speaks first could have an incorrect conclusion derived from being told that (1) the junior justice votes first and (2) voting and speaking have been combined into a single step.

  7. Two Justice Kagan’s? One is enough, Professor. 🙂

    first the Chief Justice speaks, then the senior associate Justice (Thomas), then Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kagan

  8. Personally, I love Breyer’s long hypotheticals. He often gets to the heart of the matter in a really practical way.

  9. > Kagan, Gorsuch, and Kagan.

    ITYM Justice Grover Cleveland.

  10. What’s your favorite moment of S.C. oral argument? Mine is definitely the discussion of “orthogonal” from IIRC Bush v. Gore.

    1. Burger telling Mel Nimmer not to say the f word in his Cohen v. California argument, and Nimmer immediately saying it anyway.

  11. I personally hope the justices use their own version of Zoom backgrounds. I also really hope their proprietary system will not allow porn-bombing by hackers. Seeing porn in the background of a justice asking sober questions would be rather discordant. (Fill in obligatory Justice Thomas-porn joke here.)

  12. Why wouldn’t the chief want to ask questions? If I know I’m the swing vote I’d want to do my best to reach the appropriate outcome and the best way I can do that is letting the advocates (and other justices) a sense of my mind so both sides can speak to my concerns.

  13. Two hot takes: First, it upends the argument dynamics because the speaker is essentially finished at two minutes, since after the Chief finishes or abstains (courteously), the Court looks to the next Justice rather than the speaker’s continuing to slog through the ground to be covered, as adjusted. Second, the setup as announced makes the event totally virtual, and they didn’t really have to do that. As described, the court isn’t sitting anywhere. (If everyone’s virtual, presumably it sits with the Chief Justice of the United States, and is called to order in his chambers by the Marshall, the others connecting by telephone, but it couldn’t hurt to have him and perhaps even one or two others actually in the chamber.)

    Hypo — say a superior court wished to stay a virtual proceeding in real time by Mandamus. Where does the writ run (to)?

    Mr. D.

    1. Suppose a court superior to SCOTUS wants to issue SCOTUS a writ of mandamus to stay a virtual proceeding? Now that’s a REAL hypothetical.

      1. Obviously it goes to an imaginary location.

        1. The hypo in full: The Supreme Court of Franklin, together with all of its clerks, prothonotaries, and footmen, is on a goodwill tour of China, holding oral arguments in remote Chinese towns. The Court is kidnapped by Party members who force them to hear a case in a secret Chinese enclave within Tibet’s borders whose guru surreptitiously gives them LSD, so that they believe themselves to be holding arguments in the mythical state of Shambala.

          The Even Supremer Court of Franklin (the highest court in the jurisdiction) attempts to halt the proceeding by Mandamus, and service is effected by stapling the process to the door of the court clerk’s office back in Franklin.

          (1) Is service good? (2) Does the writ run? (3) Assuming S. Ct. Frank. respects local customs as to non-dispositive forum rules, which jurisdiction’s rules of service should apply? (4) Do you know the way to San Jose?

          NB: Tibet, but not China, has passed some version of the All Writs Act. Shambala is by all reports mostly a common-law jurisdiction, but one that has adopted the UCC and ratified the Hague Convention (after a bizarre episode involving a sea-pirate named Hook).

          Quid juris?

          Mr. D.

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