In advance of the new term set to begin in October, the Supreme Court announced Tuesday that it is revising its oral argument format, importing a system it employed when it held arguments over the phone after the courthouse doors were shut because of Covid.
While the Court will maintain the traditional practice of allowing justices to engage in questioning in no particular order – the traditional free for all – there will now be an opportunity, once an attorney’s time has expired, for the justices to ask specific questions in order of seniority.
The hybrid system appears to be an attempt to blend together two approaches from the court’s recent history. The traditional format produced more lively hearings – with justices often interrupting each other – and advocates unable to always respond fulsomely. At times, justices seemed to be using the argument session to probe the positions of their colleagues, almost ignoring the attorney who was left on the sidelines with little opportunity to break in.
When the justices asked questions in order of seniority during the height of Covid, the process was more stilted, but it had the advantage of giving a justice the opportunity to fully probe a line of inquiry. Sometimes the justices, after several questions without interruption, would forecast how they would eventually rule. At times, especially early on, Chief Justice John Roberts was left having to manage the process, calling on each justice to begin their questioning and sometimes cutting off a colleague if they went long. In later sessions, the justices seemed to do a better job of watching the clock and their allotted time.
Justice Clarence Thomas – who spent years rarely asking questions from the bench – was an active participant during the telephonic hearings, giving the public, who could listen via live audio, a much better sense of his jurisprudence and his personality. One case concerned so called “faithless electors” – a member of the electoral college that does not vote for the candidate for whom they had pledged to vote.
Thomas worried that a rogue elector – without fear of penalty – could vote for anyone, including a hobbit.
“The elector,” Thomas said, “who had promised to vote for the winning candidate, could suddenly say, you know, I’m going to vote for Frodo Baggins – I really like Frodo Baggins.” The public, on social media, reacted quickly to the Lord of the Rings reference.
In another case, when a lawyer for the House of Representatives suggested that a subpoena for President Donald Trump’s financial records wouldn’t trigger a separation of powers concern, Thomas shot back. “I think we all know it’s about the President,” he said.
In general, court watchers seemed to prefer the traditional system – even though it could seem chaotic to the outside observer. Lyle Denniston, the dean of the Supreme Court press corps who is now mostly retired after covering the court for some 70 years, tweeted that he missed the “rapturous joy of cross talk.”