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,” and how Justice Thomas is using his opportunities to participate. Our first update published in October and was covered in the New York Times. 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. Our archived November and December updates are hyperlinked. Here’s where things stand through the January sitting:
- Getting questions in extra time is not a bad sign. Past studies have suggested that Justices tend to ask more questions of the side that they ultimately vote against. That does not appear to be true for extra time, so far. Most dramatically, the Court grilled the petitioner in Hemphill v. New York for ten extra minutes, with four Justices asking 16 questions, and gave the respondent no extra questions at all. The petitioner prevailed 8-1.
- Most advocates (82%) get at least some extra questions. That percentage has stayed quite consistent over the Term so far.
- Of the 17 lawyers who didn’t get extra questions, seven were sharing time with another lawyer who did get extra questions.
- On average, counsel get eight to nine questions, from about three Justices, consuming between eight and nine extra minutes. The pace slowed in January: after holding the longest argument in recent memory, more than two hours, the Justices noticeably made less use of extra time for the rest of the sitting.
- The oral argument in NFIB v. Biden, over OSHA’s emergency temporary standard relating to vaccines, smashed the previous record: an extra 78 minutes, more than doubling the argument time. The Solicitor General received 30 minutes of extra questioning in that case, double her allotted time and more than any other lawyer so far this Term. (The SG’s two opponents in that case received 38 minutes of extra questioning between them.)
- Four cases consumed more than 40 minutes of extra time apiece, and ten more consumed more than 20 minutes. Most of these were high-profile cases involving issues like abortion, the Second Amendment, and free exercise of religion. But not all long arguments are in headline-grabbing cases: the state secrets privilege and immigration detention both produced lengthy arguments.
- Overall, oral arguments have run 28% longer than the time the Court allocated. That number has come down a bit—but one reason for that is that the Court has started allotting 70 minutes, rather than 60, for normal argument in some cases.
- Since the October sitting, extra questioning has generally run for more than 10 minutes per case. Only three cases have had no extra questions at all, and five more had less than 10 minutes. But four of those cases with little or no extra questioning came in the January sitting:
The Justices get hungry. They seem to ask fewer extra questions in the second case of the day… in which every additional question pushes back lunch.
Justice Kavanaugh remains the Justice most likely to use some extra time: just under half of all advocates get at least one question from Justice Kavanaugh. Justice Gorsuch’s colloquies are longer, though, so he remains in the lead with the most questions during extra time. Justices Sotomayor finished a strong second, by number of questions, in the January sitting (in which she participated remotely, so may have found the dedicated time handy. The Chief Justice has fallen from the second-most active questioner in October to the least frequent overall.
The charts below show the December sitting by itself, and the change in number of questions during extra time over the Term so far. Several Justices, including Justices Alito and Sotomayor, were slow to use extra time at first, but have since become very active.
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. In the January sitting, his participation dropped off a bit, and in one case he asked no questions at all. Overall, though he has questioned 88% of advocates, and most arguments start with 2-3 questions from Justice Thomas.
We’ll continue to update the data throughout the Court’s term.