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Like many things in the U.S., arguments at the Supreme Court have been getting bigger and bigger in recent years. Sessions that once lasted an hour are now stretching far beyond, and that is testing the patience of some of the justices. Chief Justice John Roberts says that he's considering some changes for the new term that begins in October. NPR's Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: The Supreme Court used to be a stickler when it comes to oral arguments. Most cases took 60 minutes, start to finish. The late Chief Justice William Rehnquist operated as the enforcer. Here he is slamming the brakes on Harvard law professor Laurence Tribe in 1990.
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LAURENCE TRIBE: I had meant to save some time for rebuttal, but I...
WILLIAM REHNQUIST: But you haven't.
TRIBE: Yes, I haven't.
REHNQUIST: Thank you.
TRIBE: Thank you.
JOHNSON: Lawyers still tell stories about Rehnquist cutting off arguments once time expired and the light in front of an advocate turned red. How times have changed. Adam Feldman analyzes the Supreme Court in a Substack devoted to the justices and data.
ADAM FELDMAN: The arguments are definitely longer than they used to be. I mean, they're called for 60 minutes, but they have been going 90 minutes or longer for many of them.
JOHNSON: The COVID pandemic forced the justices to alter their routine, and it transformed the format for these oral arguments. Each advocate got a bit of time to introduce their case without interruption. And each justice got a few minutes to ask questions individually before a free-for-all erupted. Again, Adam Feldman.
FELDMAN: The purpose during COVID was you couldn't see each other telephonically. And so there had to be some ordering or it would've been really messy.
JOHNSON: Oral arguments are important, especially for the court, which has been sinking in public opinion polls. Tonja Jacobi, a law professor at Emory University, explains.
TONJA JACOBI: Oral argument is the one open part, the one transparent part of the Supreme Court's decision-making process. So it's very important to have it available to the public, even if the public mostly doesn't listen.
JOHNSON: Some of the changes to arguments are almost universally welcomed. Many lawyers are happy to hear from Justice Clarence Thomas, who rarely spoke before the pandemic. Now he gets the first question because he's the leader in seniority. Jacobi says some of the format changes that give each justice dedicated time to speak seem to respond to her research that shows male justices and male advocates had been routinely interrupting the women justices. But Jacobi says the rates of interruption are no better now. And the justices mostly use their extra time to speak to each other and stand their ground because, she says, the court's quite polarized and there's not as much room for persuasion.
JACOBI: I think it makes oral arguments harder to listen to because they just take longer without, I think, particularly adding all that much.
JOHNSON: Justice Ketanji Brown Jackson, the newest member of the court and one of its three liberals, speaks the most by far, followed by Justice Sonia Sotomayor, an appointee of Democratic President Obama. Jacobi says there's a good reason for that.
JACOBI: Essentially, I think, when you're expecting to be on the losing side of an argument, you do more talking to try and persuade people to your side. Whereas, if you're quite confident, as probably most of the conservative justices are now with six in their coalition, you're fairly confident of winning and you don't need to persuade people as much.
JOHNSON: But some of the other justices seem to have chafed at the supersized oral arguments and the questioning style of some of their colleagues. Chief Justice Roberts told an audience this summer the arguments are now a little too long, and he's thinking about how to rein them in. Former acting Solicitor General Jeff Wall says it's a hard problem. Here he is at an event sponsored by the conservative Federalist Society in July.
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JEFF WALL: I don't know what you do. It's like every time I'm on a conference call and I want somebody to stop talking. Like, there's no easy way to, like, get people to just talk less when you would like them to.
JOHNSON: Adam Feldman, who uses data to explain the work of the court, says time management for the justices is a work in progress. And he thinks Justice Roberts is working on it behind the scenes.
FELDMAN: I think the chief has to be very thoughtful about where he asserts himself, because he wants to manage the court, but he also doesn't want to alienate any of the justices.
JOHNSON: Jacobi is taking a global view.
JACOBI: Now, I should note that in other jurisdictions, such as Australia, my home country, we measure oral arguments in days, not minutes. So (laughter) it could be worse.
JOHNSON: Any changes to the format will be on display October 5, when the court starts a new term.
Carrie Johnson, NPR News.
(SOUNDBITE OF KAYTRANADA, KARRIEM RIGGINS AND RIVER TIBER'S "BUS RIDE") Transcript provided by NPR, Copyright NPR.
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