The Supreme Court’s present term has so far resulted in longer oral argument sessions along with fewer opinions released in cases, setting an atypical pace for the nine-member court as it prepares to embark on its first year of being fully reopened to the public.
Longer oral argument sessions this term are relative to recent changes the justices made to their argument style, adjustments that were tied to the COVID-19 pandemic. Such changes saw the court move to remote arguments in March 2020 before it cautiously resumed normal procedures in 2021. The court then fully reopened by the fall of 2022.
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The pandemic-era argument format led to the justices speaking more frequently and asking a higher rate of questions for the attorneys to answer before them during argument periods. Adjustments to speaking rules were also proposed in an effort to prevent the justices from inadvertently interrupting each other.
When the justices returned back to in-person arguments nearly 18 months after the start of the pandemic, they began a novel practice of asking questions at the end of each lawyer’s time based on the age of seniority. That change led to an average of 18 additional minutes per case in the 2021-2022 term, according to lawyer William Jay, who has been tracking the post-pandemic arguments.
One of the longest argument days for the justices in the fall involved the cases challenging race-based affirmative action policies at Harvard University and the University of North Carolina, Chapel Hill. Those arguments, which were heard back-to-back, lasted nearly five hours despite the justices having only scheduled two hours and 40 minutes to hear both cases.
In another lengthy case surrounding a graphic designer who doesn’t want to be compelled to create websites for same-sex weddings, Justice Neil Gorsuch and a lawyer remarked about the way time flies during intense argument and debate.
“Good morning, Mr. Olson,” Gorsuch said at around 11:30 a.m., after arguments had occurred for almost an hour and a half on Dec. 5.
“Is it still morning?” responded Colorado attorney Eric R. Olson.
“Just barely,” Gorsuch replied after public attendees laughed at the exchange. “It must not feel like it standing where you are.”
“I’m here all day, Justice Gorsuch,” the attorney said.
Of the 27 cases argued so far this term, the arguments have been longer on average due to justices speaking more, according to Jake S. Truscott, a Ph.D. candidate at the University of Georgia, and Adam Feldman, the editor at Empirical SCOTUS.
While the arguments appear to be trending on the longer side, it’s worth noting that history shows much lengthier records for the justices in deciding cases. During the 1800s, the justices sometimes needed days to debate cases, and the typical schedule was to hold arguments from noon to 4 p.m. without a lunch break.
And while the high court typically saves most of its opinion issuance days for the latter half of the spring, it’s unusual that the justices haven’t returned a single decision in a case argued this term, according to Jonathan H. Adler, a professor at Case Western Reserve University School of Law.
Prior to the death of Justice Ruth Bader Ginsburg in 2020, she was often the first justice to issue an opinion argued in a case each term and was joined by several other justices releasing opinions just before the new year, Adler wrote in “The Volokh Conspiracy” for Reason.
Adler also expressed doubt that argument times would wane in the coming months, given the tenuous and high-profile cases left in the term. He noted, however, that it’s possible an opinion release could come as soon as the end of January.