The rapid-fire question-and-answer of oral argument is a rare way for the public to see something of the justices’ personalities and their decision-making process. The court, however, after highly controversial nominations and explosive political issues like gerrymandering and the Muslim entry ban, has drawn growing attention and is adjusting its proceedings to reflect that.
Given that the court heard only nine cases in the first month of the term, any analysis of the effect of the new rule is preliminary. However, a number of trends can be observed already by comparing this term’s early cases with the 2017 and 2018 terms.
Unsurprisingly, the number of words spoken by the attorneys in the first two minutes of oral argument has gone up this term so far. Correspondingly, the number of words spoken by the justices has dropped considerably but not to zero. The data shows that the justices, despite the intention of the new protocol to hear more from the advocates, have not remained entirely silent. Sometimes the jurists have issued brief quips, or litigants have yielded their time and invited the justices’ queries. While commentators have noted Justice Sonia Sotomayor’s breach of the guideline, which drew a response from Chief Justice John G. Roberts Jr., she has not been the only one to speak in the first two minutes. Justice Neil M. Gorsuch has, too, as have Justice Ruth Bader Ginsburg and the chief justice himself, who accepted invitations from the attorneys to ask questions. Justices Samuel A. Alito Jr., Stephen G. Breyer, Elena Kagan, Brett M. Kavanaugh and Clarence Thomas have kept mum in those first two minutes (Thomas is known for his silence on the court).
The same data broken down by the number of seconds the justices and attorneys used, rather than the number of words, shows again that although there is “cheating” by the justices, they are using much less time during the quiet zone than they used in this same portion of oral argument in the past two terms.
Under the new guideline, justices continue to participate vigorously in oral arguments, but thus far attorneys have gotten in more words than the justices have across all four segments shown in the chart — including the first three minutes after the quiet zone, the next five minutes and the following 10 minutes. This is a reversal from the 2017 and 2018 terms, when justices spoke about the same or more words than did attorneys after the first two minutes. The shift suggests that the new rule may be altering the flow of the entire oral argument session, not just the opening minutes.
The pace of speech during the various time frames of oral argument indicates a similar trend. Not only are the attorneys speaking more words for more seconds during the first two minutes of oral argument, they have not slowed down to enjoy their near monopoly on speaking. Rather, the pace of attorney speech during their uninterrupted time has also increased. The faster pace of attorney oral advocacy persists throughout the remainder of the 30-minute session. This means attorneys have more opportunity to convey more information, respond more nimbly to justices’ questions and, potentially, be more persuasive.
These results, while preliminary, suggest the importance of comparing how both advocates and justices are operating under the guideline. Although the new rule has not completely silenced the justices, attorneys have received much more time for an opening statement than in the previous two terms — an average of 111 seconds as compared to about 60 seconds in the previous terms. This should make the attorneys’ arguments more coherent, with attorneys gaining in their tug-of-war with justices.
It is possible that the justices have been breaking the two-minute guideline simply because they are slow in adapting to it. After all, they are used to asking unlimited questions, whenever they like, so an adjustment period is inevitable. No doubt the signals the justices send with their behavior during this public interaction with advocates will continue to be closely watched.
Correction: An earlier version of this article incorrectly named several Supreme Court justices as having breached the new guideline.