Goodwin Insights March 21, 2022

Extra Time in The Supreme Court: Updated February 2022

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, December, and January updates are hyperlinked. Here’s where things stand through the February sitting:

  • Getting questions in extra time is not a bad sign. In decided cases so far this Term, the winning side usually got more questions during extra time (in all but two cases) and also consumed more extra time (in all but four cases).* 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. In several cases, the losing side has gotten no questions at all.

    • NOTE: We did not count Whole Woman’s Health as a clear win for either party. Where two parties split the time (as opposed to a party and an amicus), we counted the combined questioning for their side.

  • Most advocates (80%) get at least some extra questions. That percentage has stayed quite consistent over the Term so far.

  • On average, counsel get eight to nine questions, from about three Justices, consuming between eight and nine extra minutes.

  • In his final few months on the bench, Justice Breyer has begun jumping in at the end of argument more often. Notably, in half the cases this sitting, he thought of something to ask after his turn had come and gone, so he spoke up and asked a few questions after another Justice was finished (or, in one instance, during the next Justice’s turn).

  • The Term’s big case in both environmental law and administrative law, West Virginia v. EPA, was the longest argument of the sitting (almost 46 extra minutes, for a total of almost two hours). But because there were four advocates speaking — which is relatively rare — no advocate got more than 16 extra minutes.

  • Five cases have consumed more than 40 minutes of extra time apiece, and twelve 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: this sitting, an Indian law case and a criminal case produced lengthy arguments.

  • Just four cases got no extra questions at all. As a result, oral arguments have run 29% longer than the time the Court allocated.

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 Kavanaugh, Alito and Sotomayor are close behind on that measure. Then there is a large gap, with Justice Barrett in a distant fifth place (though she was much more active in January).

The charts below show the February 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.