The process hands an advantage to the court’s conservatives and makes oral arguments less fair to its female justices.
The procedures used in the May cases heard by telephone — justices were allowed to speak only when called on by the chief justice, in order of seniority — undermined some of the neutrality of the Supreme Court’s decision-making (as shown in a new study by four law professors and political scientists, including me) by eliminating the traditional, freewheeling give-and-take of oral arguments.
In the spring, as the coronavirus hit, the court initially shut down, putting all oral arguments on hold. But the pandemic didn’t end quickly, leaving the high court’s docket filled with a number of politically salient cases, including some directly affecting the presidential election. So, for 10 select cases, the court heard oral arguments at a distance.
That decision wasn’t made by committee. Chief Justice John Roberts alone chose the new forum — over “grumbling” from some of the associate justices, according to CNN. His decision, and the process he chose, significantly tilted the playing field in favor of conservatives and men.
While previous studies have shown that in-person oral arguments can be criticized for allowing the justices to act as advocates for a given side, the arguments are, in essence, what the justices make of them: Normally, the proceedings are dynamic and free ranging, with justices jockeying for the ability to engage. They send signals to each other, cut lawyers off and think out loud. Oral arguments can also be entertaining, with the justices quizzing lawyers for the best arguments and sometimes making jokes at their expense.
Roberts’s new process altered the court’s normal flow. Not only were arguments held using the antiquated technology of the telephone, but the justices had to speak strictly in order of seniority, and the only person allowed to interrupt other speakers was Roberts himself. He could choose when to cut off each justice during their dialogues with the advocates, and he didn’t do it in an evenhanded manner.
Before, the most active justices at oral arguments were three of the court’s four liberals: Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer. The fourth liberal justice, Ruth Bader Ginsburg, who died Friday at the age of 87, was more active than either Roberts or Justice Neil Gorsuch.
But once Roberts’s new argument rules were introduced, the pendulum swung in favor of the conservative justices. The telephonic arguments were much longer than the in-person arguments, averaging 85 minutes instead of the normal 61. But almost all of that additional time went to the conservative voices on the bench. Indeed, all five of the conservative justices received significant additional speaking time, far more than the liberal justices. On average, the conservatives together got more than 18 additional minutes per case, whereas liberals got only a little more than two minutes of additional time.
Most noticeable was the new level of engagement from conservative Justice Clarence Thomas, who, famously, barely ever speaks during oral arguments. But the big winner of the procedural shift was conservative Justice Samuel Alito. A close ideological ally of Roberts, Alito became the most active justice in the 10 politically significant arguments that the court heard by telephone.
In one of those cases, Little Sisters of the Poor v. Pennsylvania, the court considered whether the Affordable Care Act permitted employers to deny contraceptive coverage to female employees based on the employers’ religious or moral objections. In the oral argument of that case, the chief justice allowed Alito to engage with the advocate arguing against the exemption for a full 16 minutes, four times as long as normal for a justice, even in the longer telephonic arguments. During that time, Alito made 51 comments to the advocate and asked nine questions (a disparity that is a strong sign of the justice acting as an advocate).
By contrast, Sotomayor was allowed only four and a half minutes to engage with the same advocate before she was interrupted by Roberts. The chief justice interrupted advocates’ responses to her at a disproportionately high rate across other telephonic cases: in about two-thirds of her exchanges. Ginsburg and Kagan had their dialogues with advocates disrupted by Roberts almost half the time, as well (46 and 42 percent, respectively).
Male justices, on the other hand, seldom had Roberts step in to end their discussions with the advocates — Gorsuch had fewer than one-fifth of his interchanges disrupted by the chief justice. And when it came to these interruptions, Breyer was treated not like a liberal but like a man, with closer to one-quarter of his discussions interrupted.
While every justice has one vote, court holdings are shaped by which side can persuade at argument. Part of that comes from interaction with the advocates.
This can be remedied: The Supreme Court has long resisted having cameras in its courtroom, fearing that live images would lead to media misrepresentations of its proceedings or O.J. Simpson-trial-style sensationalism. The court could hear arguments by videoconference but still make only the audio available to the public. That would allow the justices to interact in their normal, relatively no-holds-barred manner, without Roberts’s heavy hand swaying how the arguments unfold.
With a persistent pandemic and a looming presidential election, the Supreme Court will probably be called upon to decide cases that bear on issues foundational to our democracy and society, up to and including arbitrating how the election is conducted and any disputes about who the winner is. Judicial neutrality, in that context, is vital.
The oral arguments held by telephone so far have illustrated that it is difficult for one justice to act simultaneously as one of the players and as a neutral umpire, deciding who gets to speak and for how long. It is within the Supreme Court’s power to change this, restoring greater fairness in oral arguments and faith in its role.
This story has been updated.