The Volokh Conspiracy

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Law & Government

The New Supreme Court Oral Argument Dynamic


Another law professor friend recently started listening to some Supreme Court oral arguments after some time away, and remarked to me that the arguments have gotten very long, and that many of the Justices have stopped letting people answer their questions. I think most people who follow the Court's arguments have noticed a similar phenomenon.

For instance, Professor Mike Dorf observes about yesterday's arguments in Moore v. Harper:

The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush–or simply wanted to interrupt the advocates before they finished answering the Justices' questions–that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented . . .

. . . .at various points, both Justice Alito and Justice Gorsuch asked questions and then cut off the answer before the advocate got out even a few words, presumably because they didn't like the answers they were getting. They then declared themselves unsatisfied but moved on before giving the advocate a chance to address the particular source of dissatisfaction.

This sort of rudeness was bipartisan. Justice Sotomayor–as she has sometimes done in other arguments–insisted that an advocate give a yes or no answer to a question with respect to which the advocate's position entailed some nuance, expressing annoyance and accusing the lawyer of inconsistency when he hedged. Justice Jackson (to a lesser extent) also seems to have picked up this penchant for demanding yes-or-no answers. Maybe that approach is effective on cross-examination in a trial (although even then I think it makes the lawyer come across as a bully), but unless an advocate is being outright obstreperous, it's unbecoming in an appellate argument.

I agree with the general observation of this trend, and I agree that it is quite unbecoming. It makes Supreme Court oral arguments sound more and more like congressional hearings, where each member is really just waiting for their turn to say their piece, with the advocate or witness an incidental prop. I don't think that's been good for legislative committees and I don't think it will be good for the Court either.

To be sure, this kind of comment-instead-of-a-question has partially been a feature of Supreme Court arguments for decades. The questions have not come only from those justices who are undecided about the questions they ask. And since oral argument represents the first collective conversation at the Court about a granted case, it's natural that the Justices are partly trying to talk to one another, not just gather information about the advocate's views.

But as the questions get longer and longer, more and more speech-like, and especially as the Justices are shameless about not even letting advocates give reasonable answers, and cutting them off if they start to give potentially good or persuasive answers, the arguments slide into a bad dynamic.

I am not sure what has caused this. I have heard hypotheses including the livestreaming of arguments, the polarization of the Court and the despair of some of the Justices about ever persuading their colleagues, changing media coverage of the Court related to both, and the new hybrid/round-robin oral argument format with accompanying relaxed time limits. I have no idea. But the Court is small enough, and the Justices still collegial enough, that I would hope they could change the dynamic back if they collectively wanted to.