Goodwin Insights December 13, 2021

Extra Time in the Supreme Court: Updated December 2021

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. Here’s where things stand through the December sitting:

  • Most advocates (80%) get at least some extra questions. That percentage has stayed quite consistent over the Term so far.
  • Of the 14 lawyers who didn’t get extra questions, six were sharing time with another lawyer who did get extra questions. 
  • On average, counsel get nine to ten questions, from about three Justices, consuming about nine extra minutes. After a slow start in October—which brings down those averages—the Court has been substantially more active during extra time in November and December.
  • Oral arguments are running much longer as a result. Three cases consumed more than 40 minutes of extra time apiece, and eight more consumed more than 20 minutes. Most of these were hot-button cases dealing with abortion, the Second Amendment, or capital punishment. But the most contentious issues don’t necessarily mean the longest arguments:  although the longest argument was a Second Amendment case (more than 46 extra minutes), only one of the three abortion-related arguments made the top five so far. 
    • Overall, oral arguments have run 42% longer than the time the Court allocated.
    • Since the October sitting, extra questioning has generally run for more than 10 minutes per case. Only two cases have had no extra questions at all, and two more had less than 10 minutes. 
  • Occasionally (four times in December) the Justices go out of sequence, seeking to ask a question (usually just one) after their turns have already passed.

As the chart below shows, Justice Kavanaugh has overtaken Justice Gorsuch as the Justice most likely to use some extra time:  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. Overall Justice Breyer has spoken up during extra time the least often, and asked the fewest extra questions. 

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. The Chief Justice and Justice Gorsuch are among those who have slowed down a bit.

Interestingly, several other Justices seem to be waiting until extra time to ask questions of the sort Justice Breyer likes to ask—questions with a long setup. During extra time, asking longer questions doesn’t block another Justice from questioning or eat into the advocate’s limited time allotment.

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 December sitting, he questioned all but one advocate (an amicus curiae); overall, he has questioned 93% of advocates. Most arguments start with 2-3 questions from Justice Thomas, but his questioning is sometimes lengthier: the respondent in Carson v. Makin faced 11 consecutive questions from Justice Thomas at the beginning of his argument. It’s not always obvious when Justice Thomas is finished asking questions, and sometimes an advocate will get quite a bit of uninterrupted time for his or her last answer to Justice Thomas because the other Justices hesitate to break in.

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