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T-Minus Two Minutes and Counting: Uninterrupted Oral Argument at SCOTUS

For the past 25 years, an oral argument before the United States Supreme Court was considered an oddity when an advocate managed to squeeze two or three sentences in before being interrupted by the bench.  Last Thursday, the Supreme Court stunned the SCOTUS bar by noting in its newly revised “Guide for Counsel” that the justices “generally” will not ask questions of either party during the first two minutes of oral argument.  Need reassurance that this was not a typo?  The Guide discloses that

The white light on the lectern will illuminate briefly at the end of this period to signal the start of questioning. Where argument is divided and counsel represents an amicus or an additional party, the white light will illuminate after one minute.

Guide for Counsel at 7.

This unexpected change in Supreme Court preferences left the oral argument advocates for the following week scrambling to prepare their two-minute elevator speeches.

And on Monday, the Supreme Court justices dutifully followed their newly announced policy, patiently listening for the allotted time as the advocates sought to master the new oral argument rhythm.  Yet as soon as the white light on the lectern illuminated, all bets were off. The SCOTUS blog includes a comical play-by-play detailing how the new quiet time worked on its first day out of the gate.

I am interested to hear our blog readers thoughts regarding this change. For example,  any speculation as to why the Supreme Court implemented this change–apparently with little warning?  Will the new system benefit both appellants and appellees equally?  Will advocates take advantage of the two-minute grace period? Or will they waive it in favor of jumping right into the justices’ questions? And is anyone taking bets on whether (or how long) these listening moments will survive at SCOTUS?

You have two minutes to respond in the comments below–at which point this blog post may self-destruct. 😉

-Beth Scherer

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4 Responses to "T-Minus Two Minutes and Counting: Uninterrupted Oral Argument at SCOTUS"

  • Patrick Kane
    October 8, 2019 - 3:47 pm Reply

    I find this fascinating. I wonder if it is an effort to minimize the impact of clear divisions on the Court on hot button issues and to foster a less aggressive and combative environment between the Justices themselves during oral argument. Typically the first questioner has been a Justice that feels very strongly on one side of the issue, and that Justice essentially becomes an advocate. That, in turn, causes one or more Justices who feel very strongly on the other side of the issue to jump in and advocate (through leading questioning) for their position. Perhaps the thinking is that if counsel has two minutes to open without interruption, he or she can set the stage for the argument to proceed in a manner that is less about the Justices arguing with each other with the lawyer as the medium for that debate.

    As for the reason for the change now, look no further than our current political environment, where there is no semblance of collegiality between legislators and politicians in hearings of any sort. Maybe the Court desires to set an example of how people can calmly and respectfully debate different sides of an important issue, and the uninterrupted two minutes is the starting point for that.

    • Beth Scherer
      October 8, 2019 - 4:04 pm Reply

      Pat–I think you may be onto something regarding SCOTUS’s desire to show the public that the best discussions happen when both sides listen–at least for 2 minutes. To an outside observer, a SCOTUS oral arguments might resemble a twitter smack-down–rather than the Socratic method we learned in law school.

      I found it interesting that Justice Alito asked Chief Justice Roberts if he could finish his question after the light went off. While the courtroom laughed, this may be a signal that the justices want to reset the tone of civility and avoid interruptions even between the Justices.

  • Edward Yeager
    October 8, 2019 - 8:28 pm Reply

    Pat’s suggestion that the Court is trying to set a new tone certainly makes sense. It will be interesting, however, to see if the Justices allow the attorneys to finish their answer before hitting them with another question.

  • Chris Edwards
    October 9, 2019 - 1:29 pm Reply

    Two minutes might not seem like much, but I wonder if this new guaranteed uninterrupted time isn’t counterproductive—especially at SCOTUS. I agree that the Justices’ questions can seem overly aggressive. But because the Court is deciding so many significant cases—often not along party lines—it seems weird that the Justices would hold bad from asking about what’s most important to them.

    I predict that they’ll “forget” about the rule soon. It might be in a significant case. But it also might come in a case where the advocate isn’t especially prepared. In those cases, it seems like the advocate’s answers aren’t all that helpful. But I imagine that two minutes of irrelevant or confusing arguments might be even less so.

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