The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court has been utilizing a new oral argument format this term. Audio of the arguments is streamed live through the Court's website. Advocates get a brief opportunity to introduce and frame their case, followed by a period of open questioning, followed by an opportunity for each justice, in order of seniority, to ask additional questions they may have. (This format is detailed on p. 7 of the Court's Guide for Counsel in Cases to Be Argued.) The new format seems to result in longer arguments, but also more probative ones, and live audio is great.
One interesting development with the new format is that Justice Thomas has asked the first question in the vast majority of arguments thus far. Indeed, as of yesterday, Justice Thomas had asked the first question to all but one of the advocates so far this term. This is a positive development, as Justice Thomas' questions are good ones.
Now speculation about Justice Thomas' change has replaced speculation about why he used to not speak much at all during argument. One suggestion is that Justice Thomas never liked the rough-and-tumble of open argument and did not want to interrupt his colleagues, and is now (in effect) given the opportunity to get the first questions in before the feeding frenzy begins. It is also possible that Justice Thomas simply concluded that his regular questioning during the Court's telephonic arguments last year made for better arguments (they did) and wanted to remain involved. Whatever the reason, his greater participation is welcome.
As for why the Supreme Court altered the oral argument format, Ariane de Vogue of CNN reports on comments Justice Sonia Sotomayor made about the change at N.Y.U.
Justice Sonia Sotomayor told an audience Wednesday that recent changes in the format of oral arguments were instituted in part after studies emerged showing that female justices on the court were interrupted more by male justices and advocates.
Sotomayor said the studies, including one by researchers Tonja Jacoby and Dylan Schweers in 2017, have had an "enormous impact" and led to Chief Justice John Roberts being "much more sensitive" to ensuring that people were not interrupted or at least that he would play referee if needed. . . .
Sotomayor said that she had noticed the pattern "without question" before the system was changed on the bench and sometimes she would respond in a way that she knew was probably not ideal. "I interrupt back," she said.
The study to which Justice Sotomayor referred is "Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments," by Tonja Jacoby and Dylan Schweers, which was published in the Virginia Law Review.
During her remarks, Justice Sotomayor also commented on the use of originalism and on diversity on the federal bench. From Ariane de Vogue's report:
New York University School of Law professor Kenji Yoshino noted that several of the court's conservative members adhere to originalism—the judicial theory that the Constitution should be interpreted as it was understood at the time of the founding. He inquired whether that approach will become "increasingly untenable" as the country's demographic makeup continues to depart substantially from the make up of the framers.
Sotomayor agreed that a number of her colleagues adhere to the philosophy and she said, "whether and how that will lead to dissonance between what we are deciding and what the general population accepts as what the law should be—is a fascinating question."
She said that there is "going to be an awful lot of dialogue by the greater society about the role of the courts in our society" and noted that there already had been some discussions among critics of the conservative majority concerning whether the court's composition should change. . . .
She noted that when Ruth Bader Ginsburg passed, "we lost our only civil rights lawyer" and that currently there is no other justice who has "been in the trenches" on civil rights, or immigration, or environmental law.
"I do worry that the authorities who are selecting judges are not paying enough attention to that kind of diversity as well," Sotomayor said. . . .
Justice Sotomayor is the only justice on the Court with experience as a trial court judge, and one of only two who worked as a trial prosecutor.
A final note, like most speeches or appearances by Supreme Court justices, Justice Sotomayor's remarks were neither noted nor posted on the Supreme Court website.