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 November sitting:
- Most advocates (78%) get at least some extra questions.
- Of the 10 lawyers who didn’t get extra questions, five were sharing time with another lawyer who did get extra questions.
- Although a few more lawyers escaped extra questioning during November, and one case saw no extra questioning at all, the time spent on extra questioning increased.
- On average, counsel get nine to ten questions, from two to three Justices, consuming about nine extra minutes. That’s a sizeable increase from October.
- Oral arguments are running much longer as a result. Two cases consumed more than 40 minutes of extra time apiece, and five more consumed more than 20 minutes. Most of these were hot-button cases dealing with abortion, the Second Amendment or capital punishment. Overall, oral arguments have run 27% longer than the time the Court allocated.
As the chart below shows, Justice Gorsuch remains the most active user of extra questioning: he questions the most advocates, and he asks the most questions per advocate when he uses extra time. Overall, Justice Breyer has spoken up during extra time the least often, and asked the second-fewest extra questions.
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. He has questioned 91% of advocates, and most arguments start with two-to-three questions from Justice Thomas.
We’ll continue to update the data throughout the Court’s term.