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.

Comments

[ReaderY]

I’m wondering if the justices are playing to the audio recording, to make speeches as if playing to a jury, trying to sell their positions to the public, rather than using the oral argument to inform themselves of the opposing parties’ positions.

I suspect simultaneous audio is having a big effect, analogous to cameras.

[Joe_dallas]

oral arguments have evolved as a vehicle to convince the other justices of their respective position. That why Thomas approach was good – let the advocates expound on their position.

[juris imprudent]

Cameras will make it worse – every justice mugging like Senators Schumer and Cruz.

[Josh R]

Was it better with remote arguments during the pandemic when the justices took turns asking questions (that’s what got Justice Thomas to participate)?

[captcrisis]

This state of affairs will change how advocates answer questions.

For some years I worked at an agency with a boss who would interrupt underlings before they even finished one sentence. The result was everyone developed a roundabout way of talking to him. If the answer, logically delivered, was ABCDE, but you were interrupted in the middle of B, he would walk away assuming you didn’t know CDE. So we ended up talking fast like EBCAD or some weird combination, so that he would be puzzled enough not to interrupt until we were finished.

[Stephen Lathrop]

Captcrisis — When I did investigative reporting I discovered that a measured pace and questions in scrambled order, delivered deadpan, proved helpful. Interviewees gave up trying to anticipate where I was going. They just answered in whatever way they thought might be helfpful, or obstructive, depending on how they were positioned. Also helpful were unstructured questions, and patience to sort through rambling answers. Yes-or-no questions were mostly right out.

Of course I understand why that won’t work in a Supreme Court oral argument. It makes me wonder, though, what purpose a Supreme Court oral argument does serve. I have always wondered, given the complexity of the issues and the importance of the outcomes, why the justices did not take days to discuss each case with the advocates, especially in cases where technical issues beyond laymen’s everyday experience might figure.

[John F. Carr]

Supplemental briefing could replace oral argument. “The parties are directed to brief the question, does the reference in the Christianity Act to the holy Roman empire mean the Byzantine Empire, which is said to be holy, Roman, and an empire, or the entity headed by the successors of Charlemagne, which is said to be none of these?”

[Area Man]

Supplemental briefing with specific questions would be so much better than oral arguments.

[captcrisis]

Or a round of emails back and forth

[JonFrum]

I am in favor of yes/no questions. If I’ve asked you a yes/no question, I expect a yes/no answer. That’s how language works. AFTER you’ve properly answered me, of course I’ll allow for elaboration. But if you refuse to answer a clear question, then I can only assume you have something to hids. Nuance is not an excuse for dissembling. If I’m a Supreme Court justice, you’re damn well going to answer my questions or suffer the consequences.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Not all questions can be answered yes/no, even if that is the question.

Q. Have you stopped beating your wife?

A. I’m not mar–

Q. Yes or no, Mr Wife Beater! Have you stopped beating your wife?

[myself]

Yes, there are specific examples of questions where yes/no are not appropriate answers (that specific one being a loaded question).

But, if the questioner is asking an honest question then avoiding a yes/no answer is often an attempt to avoid admitting a negative consequence.

For example, consider the Ohio law that necessitated a 10 year old rape victim to travel out of state to receive an abortion.

There’s a very clear question “Does the law prohibit a 10 year old rape victim from receiving an abortion?”

It’s also very clear that supporters of the law were very, very reluctant to answer that question with a yes or no answer.

[Rossami]

I’ve not looked at the Ohio law in question but as a general rule, that is very often not a clear question. If interpretation of law were easy, there would be no need for judges to ever do that whole “statutory interpretation” thing.

The right answer to your hypothetical might be “I don’t know and if you can’t tell either by simply reading the law then maybe you should certify the question down to the Ohio Supreme Court.”

[myself]

The questioner isn’t asking for the court’s opinion, it’s asking for the opinion of the person they just asked.

And the right answer to my hypothetical is that yes, the law would prohibit that girl from getting an abortion in Ohio.

Now it’s possible that the court might decide that not allowing her to get an abortion was unconstitutional…. but the intent of the law was quite clear that it would prevent her from getting an abortion and that is the “yes” answer advocates of the law did not want to give.

[GKHoffman]

A trial lawyer’s demand that a witness limit his answer to yes or no would be objectionable, or if no objection is made, rightly ignored by the witness. That’s not possible before the SCt, but I see Justices’ demands for yes/no response as very bad form.

[Joe_dallas]

I testified multiple times as expert witness (civil cases and one criminal case). I personally find the Yes / no format of the questions to be highly misleading , and generally the least informative format.

[David Nieporent]

I am in favor of yes/no questions. If I’ve asked you a yes/no question, I expect a yes/no answer. That’s how language works. AFTER you’ve properly answered me, of course I’ll allow for elaboration.

Just because you’ve framed something in a yes/no format does not mean it’s a genuine yes/no question. I’m not even talking about trick questions. The answer may be “sometimes.”

Also, there’s no actual guarantee that the judge will allow for elaboration, which means I have to make sure I get in the explanation before the judge moves on (or another judge jumps in).

[Social Justice is neither]

As we expect the judiciary to function more and more as a secondary legislature why is it surprising they act more like one? The more information they release as to their thoughts and positions the more likely they will see that reflected in the next iteration of law and cases.

[MaddogEngineer]

Is this called out behavior really new? I thought the justices have been famous (or infamous) for a long time now stepping on the responses of the advocates in front of them. Maybe the pandemic with remote oral arguments gave a brief holiday from that. This seems more a return to normalcy.

[Dilan Esper]

See my substack on this. I think it is polarization + live streaming of oral arguments.

https://dilanesper.substack.com/p/the-supreme-court-has-an-oral-argument

[Sarcastr0]

Looks like how recently you’ve come to the Court is a corollary here, FWIW.

[Mr. Bumble]

Just imagine oral arguments if the Dems had their way and “packed” the Court.

[tkamenick]

Are state supreme courts more like this? I know mine (Wisconsin) is. Not universally, some justices are worse offenders than others.

[loki13]

Generally, no.

I think Wisconsin is more like this (assuming you are accurately relaying this … I’m not familiar with the dynamics) because of its polarization. Generally, my anecdotal observation is that polarized appellate courts then to be “hotter” during oral arguments.

That said, my personal observation is that the level of decorum has dropped in the last ten years overall.

[Number 2]

In contrast, New Jersey’s Supreme Court is remarkably gentlemanly. Interruptions are rare, and they allow advocates five uninterrupted minutes at the outset of oral argument to state their positions before questioning begins.

[Jaypd]

I’d like more things like this and less Blackman commentary.

[Area Man]

The Court recently implemented a rule that gave advocates 2 minutes to give an uninterrupted opening statement. It would be nice to see a similar rule where advocates always had at least 15-30 seconds to answer a question before another could be asked.

Moreover, oral arguments are devolving into political speeches (or, at least, more so than in the past). I have little doubt it’s because of the live audio. It should be the practice of the Court to not release audio until the end of the term unless it has to correct widespread misinterpretations of what was actually said.

God help us if they ever allow cameras in the courtroom. And, no, “lower courts do it” is no argument in its favor because there is no forum like the Supreme Court for either advocates or the Justices. Indeed, the Justices are likely to be the more egregious actors in that situation.

[David Nieporent]

It would be nice to see a similar rule where advocates always had at least 15-30 seconds to answer a question before another could be asked.

The problem with a hard rule like that is that it may allow for 30 seconds of answering a different question (or simply dodging the question), which is a lot of time to waste in a short oral argument.

[Brett Bellmore]

How long are the oral arguments, typically? Do they actually have to be short?

[Area Man]

It’s interesting. They used to literally last days. Then they were cut down to several hours. Then, in more recent times, they were about an hour, two for really complex and meaty issues. But since the pandemic, the time has gone back to several hours. There’s no set rule.

[Area Man]

My retort is that advocates can already ignore or dodge questions, and often do. Thirty seconds might be a bit long, but I think 15 seconds would still allow the argument to flow and the Justices to press them when they ignore or dodge.

And, as I say below, there are no rules for arguments. The Court could have a round of questioning that gives the advocates set time to answer, and another round that doesn’t. Or it could have a hard-questioning segment, and then a segment where the advocates get a chance to address–with little to no interruption from the Justices–questions they feel they weren’t given a chance to answer.

But the current system is largely a farce, IMHO. And there needs to be some type of reform so advocates can actually, you know, advocate.

[SRG]

If we assume that in general the Supremes have made up their minds even before the case is heard – assuredly true with Alito and Moore – little wonder that oral arguments degenerate into Congressional committee type pontificating,

[Longtobefree]

In reality, if it can be answered yes or no, it probably won’t get to the supreme court.

[ReaderY]

The mate was a mighty lawyer man
The counsel brave and sure
Three parties all set sail that day
For a three hour argument.
A three hour argument.

The judges started getting rough
The ship of state was tossed
If not for the courage of the fearless crew
The argument would be lost.
The argument would be lost.

[Bored Lawyer]

Impressive.

[Jmaie]

Now try singing it to the tune of Frosty the Snowman…

[ReaderY]

Perhaps

The judges started getting rough
The counsel’s brief was tossed

[Stephen Lathrop]

Wouldn’t it be a shock and a gratification if a Justice began framing questions—and listening to answers—calculated to elicit the strongest possible arguments against the Justice’s preferred outcome?