Supreme Court

Justice Thomas Sets the Tone in New Oral Argument Format

And Justice Sotomayor suggests one reason for the new format is that male justices tended to interrupt female justices.

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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.

NEXT: Shenanigans at Yale Law School

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  1. “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.”

    Perhaps the Court should establish by rule — while the current roster still has the chance — that the farthest-right justice always goes first?

    1. By “farthest-right”, you mean “most correct”, right? Correct?

      1. I note that as the most senior justice, he would also be the first to have a chance to ask additional questions.

  2. Of course we, the better educated and worldly, understand that ‘may not’ has changed with the advancement of human knowledge to mean ‘must.’ ‘Up’ now is clearly understood to mean ‘down.’
    That is why there is a clear argument that the process for amending the Constitution is undemocratic and therefore unconstitutional.
    Law as mutable words.

  3. “She noted that when Ruth Bader Ginsburg passed, ‘we lost our only civil rights lawyer'”

    That depends how you define “civil rights lawyer,” no? Clarence Thomas was the Assistant Secretary for Civil Rights at DOE and then the head of the EEOC. Or can only liberals be “civil rights lawyers”?

    1. He paralyzed and neutered the agencies he was running. Reagan knew he would do that and that’s why he was appointed.

    2. That’s really more of a political (administrative) position.

      I think that this was a shorthand for someone who had experience in terms of civil rights litigation- as the quote appears to continue, “in the trenches.”

  4. sotomayer comment – “I do worry that the authorities who are selecting judges are not paying enough attention to that kind of diversity as well,” Sotomayor said. . .

    She would prefer justices pay attention to diverisity such as the two that dissented in Shuttee v bamn or the CA1 panel in Ricci.

  5. The question of how the Constitution is to be interpreted might best be answered by an amendment thereto. Instead of leaving the issue to the judges or partisanship or personal philosophies, it seems to me it’s interpretation ought to be based on terra firma. My suggestion would be the following:

    “This Constitution, and the laws of the United States which shall be made in pursuance thereof; shall adhere to and be interpreted as the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces and this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each.”

    1. The difficulty is that ww have a highly divided society, and amendments require close to unanimity. It may well be that the framers intended that no change occur in such circumstances. But it’s at least arguable that the amendment process is too onerous and the supermajorities needed should be relaxed somewhat.

    2. I have trouble seeing how that language would be a meaningful constraints on judicial decision making.

  6. Sexist card played! These “strong” women are all such wilting flowers in practice.

    “currently there is no other justice”

    If she is so concerned, she can resign and let a civil rights lawyer take her place.

  7. I wonder about that study of men interrupting women more often. Not going to wade through it … but does it allow for there being more male justices than female? 6-3 makes for simple fractions, 2:1 possible interruptors one way, 1:2 the other.

    1. The claim is that female justices are interrupted more by male justices and advocates, but is that *relative to how often they’re interrupted by female judges and advocates*, or *relative to how often male justices are interrupted by (other) male justices and advocates*? It’s not clear from the text here what comparison is being drawn.

    2. Yep – I’ve not bothered to look at the studies in this area either but…

      How does Thomas neither interrupting or being interrupted through virtually his entire time on the bench enter into the evaluation.

      How many “question seconds” did female justices, per capita, consume vs. male justices. The more time you spend asking questions, the more likely you are to be interrupted.

      Also, what constitutes an “interruption”. If Justice A asks a question and, during the counsel’s answer, Justice B interrupts counsel is that an instance of B interrupting A?

      Also, is it custom if two Justices start a question at the same time and talk on top of each other that the more junior Justice will yield? If so, how does the balance of seniority vs. gender during the study period factor in.

      I assume (hope?) these and other relevant factors were included in the analysis.

  8. Perhaps Justice Thomasy being polite by not interrupting during oral.aeguements. It seems unlikely he ever interrupted a female Justice.

  9. 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.”

    Note the statement – what the law should be – insted of what the law is

  10. Wow. The usual people making the usual statements. Awesome.

    Anyway, her concluding remark is absolutely correct. The “typical path” for SCOTUS has resulted in a narrowing of the jurisprudential field. It’s almost all the same-
    Elite school/Elite Law School/Clerkship with CoA/Clerkship With Scotus/Short Time with Prestigious Law Firm in Civil Practice (Appellate)/Bit of Seasoning on CoA (probably D.C.).

    Rinse, repeat. But we aren’t getting people like we used to- criminal defense attorneys, trial litigators, attorneys that spent time in politics, or even trial court judges.

    A diversity of legal experience would be helpful.

  11. “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.”

    I inquire why anyone thinks the current version of the Constitution empowers any particular demographic over any other.

  12. Wow, you mean we should look at actual diversity of experiences instead of using race and gender to stand in for them? Radical concept.

  13. 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.

    In my opinion, SCOTUS doesn’t need more ex-prosecutors, but they could use someone with trial experience on the criminal defense side.

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