October 29, 2021

Extra Time in the Supreme Court: October 2021

These statistics published on October 29, 2021. Updated statistics can be found here.

This fall, after returning from a year of telephone arguments, the U.S. Supreme Court significantly changed its argument format. The biggest change was the addition of an untimed round of questioning at the end of each advocate's argument. Another unannounced change is that Justice Clarence Thomas has begun questioning each advocate at the beginning of each argument — after the advocate’s one-to two-minute introduction, but before the other Justices jump in for free-for-all questioning.

Goodwin's Supreme Court and Appellate Litigation Practice has been closely tracking how the Justices are using this "extra time." We'll update the data at the end of each two-week sitting, and we’ll share additional observations about how the Justices are using the format. Here’s where things stand after the October sitting:

  • Nearly every advocate (85%) got at least some extra questions.
  • On average, counsel get seven to eight questions, from two to three Justices, consuming six to seven minutes.
  • The amount of extra questioning is quite variable, even between the two sides of a case.
    • One advocate got nearly 26 minutes of extra questioning; his adversary got only five.
    • One advocate got 28 extra questions; some got only two.

As the chart below shows, Justice Gorsuch so far is the most active user of extra questioning. Justice Alito has used it the least.

Justice Thomas has also been active in using his turn to ask questions during extra time. All of his interventions in oral argument have come at a time when he doesn’t have to interrupt counsel or colleagues — either right after counsel’s introduction, or during extra time.

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We’ll continue to update the data throughout the Court’s term.