The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.