Changes in Supreme Court Oral Argument Format: The Good, The Bad, and the Ugly

With a week of telephonic Supreme Court oral arguments under the belt we now have meaningful data points to compare old style oral arguments with the new framework. These new arguments were not without mishaps, however, as both justices and attorneys attempted to navigate this new terrain.  With the Supreme Court transcript data and audio recordings, we can examine the changes accompanying this new format with the same methods used to analyze past oral arguments.  Most signs point to a favorable evolution as there was plenty of engagement including from the oft-silent Justice Thomas.  Still not everyone in the Supreme Court world was pleased with the new format as it is still clear some of the kinks need to worked out of the system.

The data in this post was taken from the four telephonic arguments from this week: U.S. Patent and Trademark Office v. Booking.com B.V., U.S. Agency for Int’l Development v. Alliance for Open Society Int’l, Barr v. American Association of Political Consultants Inc., and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and compared with data from four of the most recent arguments prior to the format change: June Medical Services LLC v. Russo, Liu v. Securities and Exchange Commission, Seila Law LLC v. Consumer Financial Protection Bureau, and Department of Homeland Security v. Thuraissigiam.

One thing that is clear from the new format is that Chief Justice Roberts is forced to have a greater role in the organization of the proceedings as he dictates when its time for a justice’s turn to interact with an attorney begins and ends.  In a recent paper, my co-author and I recommended such a change in oral arguments to prevent justices from vying for chances to speak, often cutting each other off from speaking as well as the advocate in the process. So far, this tact appears successful. The chart below shows the number of turns each justice took speaking in all eight arguments examined.  In all charts in this post the blue bars are for arguments in the newer cases and the orange bars are for arguments in the older cases.

Turns

Chief Justice Roberts is the only justice to clearly take more turns in the newer arguments and this is due to his new timekeeping role.  Each of the other justices aside from Kagan took the most turns to speak in a case prior to the format shift with Roberts taking the most turns in Little Sisters of the Poor with 41 followed by Sotomayor with 35 turns in Russo.  Justice Thomas took zero turns to speak in all of the four arguments prior to the argument format change and Gorsuch spoke in two of the four older arguments.  All other justices participated in each of the eight arguments except for Justice Kagan who recused in the Alliance for Open Society case.

The two main metrics I used to track oral argument participation were words per argument and words per turn. Both justices and attorneys averaged increased numbers for both measures with the new arguments.

2

The bump in the average words attorneys spoke in oral arguments in the new format is most noticeable. This increase of over 1,000 words per argument is quite telling that the new structure allows attorneys more room to participate as they are only asked questions by one justice at a time. The justices appear more engaged by these numbers as well as they both speak more in total and per turn talking. This likely has to do with eliminating justices from competing for talking time and instead offering them uninterrupted interactions with the attorneys. On the other hand, they are prevented from follow up questions and especially for the justices that have their turn earlier in the arguments, there is no room to piggyback on other justices’ points.

Breaking these numbers down by individual justice we see how all justices aside from Sotomayor, Breyer, and Ginsburg (ever so slightly) spoke more with the new format.

3

Justices Kagan, Roberts, and Gorsuch showed the biggest changes from the old argument format to the new, although Gorsuch’s numbers were brought down from the two arguments prior to the shift in format where he did not speak. Thomas’ numbers obviously increased as he only spoke in two arguments in the 14 years prior to the format change.   Justices Alito and Kavanaugh’s increases in the new format were much more modest.

All justices except for Roberts are speaking more words per turn in the new format. Roberts’ decrease is directly related to the number of additional turns he now takes to ensure the telephonic arguments run smoothly.

4

Some of the jumps in words per turn are quite large including most noticeably those for Justices Breyer and Gorsuch (and obviously Thomas).  These increases also stem from the ability for individual justices to interact with attorneys without other justices jumping into the fray.  Justice Kagan appears to have the most balanced participation in this respect between the old and new argument formats except for her recusal in one of the four new format arguments.

Justice Kagan spoke the most of the justices in two of the three new format arguments in which she participated and spoke the third most in the third.

5

Sotomayor and Roberts spoke most of the justices in one argument each.  While Thomas participated in each of the four new format arguments he spoke least of the justices in each of them, thereby at least somewhat maintaining his low profile. Justice Ginsburg, joining oral arguments from her hospital bed after being treated for a gallbladder condition, spoke third most of the justices in the Little Sisters of the Poor arguments and spoke the second fewest words in the Barr arguments after Justice Thomas.

The change in argument format offers an interesting lens into potential favorable changes for oral arguments moving forward. The justices all seem to be participating more in the new format and have a greater chance to interact with the attorneys. Attorneys too appear more able to respond to questions as they are peppered with fewer of them and by only one justice at a time.  While the benefits from the new format are clear the costs in preventing justices from asking questions outside of their allotted time might be great as well.  While we will never know the extent of such costs, the new format at least presents a good case study for the differences that are a product of a more ordered process.


On Twitter: @AdamSFeldman

Consulting at Optimized Legal Solutions LLC

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