'Talking and talking': Legal reporter explains why Supreme Court oral arguments have become longer

26 December 2022

In the past, the U.S. Supreme Court imposed strict limits on the amount of time justices were allowed to devote to oral arguments. The Warren Court of the 1950s and 1960s abided by a one-hour-per-side limit that had been imposed in 1925; the Burger Court, in 1970, cut it back to half an hour.

But in 2022, according to National Public Radio (NPR) legal reporter Nina Totenberg, the justices have been making their oral arguments longer.

“The justices of the U.S. Supreme Court have, at least in modern times, been known for their discipline when it comes to talking,” Totenberg explains. “But of late, they have been talking and talking — and talking, sometimes more than doubling the amount of time allotted for oral arguments.”

Totenberg continues, “On paper, the arguments are not different in length than in decades gone by. In most cases, each side is allotted a half hour, or in some cases, five minutes more. In extraordinary cases, where there are multiple major issues, or multiple consolidate cases, the Court will, on occasion, allocate more time…. Yet, this term, while most cases were scheduled for 60 minutes total, and three cases were scheduled for 90 minutes or slightly longer, the Court, on average for all cases, asked questions for an additional 31 more minutes over the allotted time. Additionally, in the big cases, the justices ran long by, on average, 80 percent.”

According to Totenberg, this “change in behavior” at the High Court “dates back to the pandemic lockdown.”

“Remember that the justices continued to hear arguments, but by phone, because they thought Zoom wasn't safe from crashers and crashing,” Totenberg notes. “But when you hear arguments by phone, you can't see each other. So, to prevent the justices from constantly interrupting each other, the questioning went in order of seniority, with each justice allotted just a few minutes, instead of the usual free-for-all.”

Totenberg continues, “When they returned to the bench in 2021, they could now see each other again, but instead of returning to the old discipline, they started to speak longer and longer. And, the system that now exists at the Court is that for however long a lawyer has — let's say, a half hour — he or she faces the basic free-for-all that used to exist pre-pandemic. But instead of the oral argument ending there, the justices do a whole second round, with each justice going in order of seniority, followed by a final check from the chief justice to make sure his colleagues have no more (questions).”

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