Supreme Court Revises Its Procedure for Arguments
The court, which is hearing major cases on abortion and guns, has revised its procedures to make sure that all justices are heard.,
WASHINGTON — Justices Sonia Sotomayor and Clarence Thomas may not agree about much, but they have both said the Supreme Court’s oral arguments have been plagued by too many interruptions. A few years ago and again this fall, the court took steps to address their concerns.
After a 2017 study showed that female justices were disproportionately interrupted by their male colleagues and by male lawyers, Chief Justice John G. Roberts Jr. took action, Justice Sotomayor said in a video conversation last month at New York University’s law school.
“That study had a great impact,” Justice Sotomayor said.
“I know there is often discussion about how much influence research has on the courts,” she said. “In the case of that study, I think it had an enormous impact. I know that after reports of that finding came out that our chief judge was much more sensitive.”
Chief Justice Roberts, she said, started “playing referee when interruptions happened and ensuring that people got back to the judges who were interrupted.”
(When the chief justice famously said at his 2005 confirmation hearing that “judges are like umpires,” this is almost surely not what he had in mind.)
Justice Thomas is also no fan of interruptions, saying the lawyers arguing before the court should be allowed to make their case without being bombarded with questions.
“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.
Justice Thomas once went for a decade without asking a question from the bench, expressing disdain for arguments that could resemble verbal roller derbies. “We look like ‘Family Feud,'” he told the bar group.
After the justices were ousted from their courtroom last year by the pandemic, they heard arguments by telephone, asking questions one at a time in order of seniority. It was both civilized and a little inert. Justice Thomas was a full participant.
When the justices returned to their courtroom last month, after an absence of about 18 months, the court announced a new format, one that showed, if nothing else, that the justices were giving a lot of thought to how to conduct arguments that are both probing and polite.
They settled on a hybrid model, supplementing the familiar free-for-all questioning with a round of optional one-at-a-time questions, proceeding in order of seniority, once per lawyer.
“It’s the biggest change to oral arguments since I’ve been following the Supreme Court,” said William M. Jay, a Supreme Court specialist at Goodwin Procter, “and I’ve been an appellate lawyer for 20 years.”
The justices also appear to have agreed among themselves to let Justice Thomas ask the first questions during the main part of the arguments, and he did so almost without exception in the nine arguments the court heard in October. He posed the first questions to all but three of the 20 lawyers in those cases, asking an average of 2.6 questions per lawyer, according to data compiled by Mr. Jay and his colleagues.
“The reaction to Justice Thomas regularly questioning was so uniformly positive that I’m not at all surprised that they did something to facilitate that,” Mr. Jay said.
The extra questioning added about 12 minutes on average to the arguments, which would ordinarily have been an hour long. But the cases the court heard in October were mostly minor.
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A blockbuster term begins. The Supreme Court, now dominated by six Republican appointees, returned to the bench on Oct. 4 to start a momentous term in which it will consider eliminating the constitutional right to abortion and vastly expanding gun rights.
In one the justices seemed to find unusually engaging, on whether to reinstate the death sentence for Dzhokhar Tsarnaev, who had been convicted of helping carry out the 2013 Boston Marathon bombings, Eric J. Feigin, a lawyer for the federal government, got 26 minutes of extra questions.
Mr. Jay said the hybrid questioning was a success. “It’s healthy,” he said, “that we’re spending an extra six minutes or so per advocate and getting quite a few extra questions, quite a few extra lines of questioning and more participation by a larger number of justices, including of course Justice Thomas, who has been the third most active user of extra time.”
Justice Neil M. Gorsuch was first, by a lot, and Chief Justice Roberts was second.
It is not clear whether the recent changes were driven in part by the concerns Justice Sotomayor noted, but she said that the justices had become more careful.
“My colleagues are much more sensitive than they were before,” she said. “You will see us, even now when we’re speaking, a judge will say, ‘Sorry, did I interrupt you?'”
But she added that the 2017 study had documented something real about the tendency of men to interrupt women.
“Did I notice it as a dynamic?” she asked. “Without question, before the study came out. But I don’t know of a woman who hasn’t. Regrettably, that is a dynamic that exists not just on the court but in our society in general. Most of the time, women say things, and they’re not heard in the same way as men who might say the identical thing.”
“It used to happen, I noticed, with great frequency to Justice Ginsburg,” Justice Sotomayor said.
In 2009, Justice Ruth Bader Ginsburg, who died last year, told Joan Biskupic, then of USA Today, that she sometimes felt ignored at the justices’ private conferences. “I will say something — and I don’t think I’m a confused speaker — and it isn’t until somebody else says it that everyone will focus on the point,” Justice Ginsburg said.
In 2018, not long after the study appeared, Justice Ginsburg, was asked about it. “Let’s see how it affects my colleagues,” she said. “I think it well may.”