How a Covid-Era Scramble Transformed Supreme Court Arguments

On about 40 mornings each year, the justices take their seats behind the Supreme Court’s majestic mahogany bench to hear oral arguments.

Part interrogation of the lawyers before them and part conversation among the justices, those sessions are not as important as the written briefs submitted by the parties. But the arguments that follow those submissions are essentially the only way the public can see the court at work.

The ritual had hardly changed in 50 years until the spring of 2020, when the pandemic ousted the justices from the courtroom for 18 months.

Scrambling for a solution, they decided to hold arguments by telephone, revised how they posed questions and let the public listen in.

Those improvised stopgap measures turned out to be the start of a fundamental transformation of the court’s signature ceremony.

When the justices returned to the bench in October 2021, their approach to oral arguments had undergone a revolution. The aftershocks are still reverberating.

The justices allowed live audio of the arguments, letting the public hear what went on in the courtroom in real time from anywhere in the world.

They also revised the format of the arguments, adopting an ungainly hybrid that started with a familiar free-for-all barrage of questions and ended with one-by-one queries in order of the justices’ seniority.

Both developments appear to have prompted lasting consequences.

The length of arguments shot up. Justice Clarence Thomas, who once went a decade without asking a question, became a regular participant. Justice Ketanji Brown Jackson, who joined the court in 2022, quickly became the most talkative member of the court in living memory. Around the same time, Chief Justice John G. Roberts Jr. grew taciturn, rivaling Justice Thomas as the least voluble member of the court.

A comprehensive new study ***essed many aspects of this sea change, gathering information on the roughly 16 million words uttered during 1,425 oral arguments from October 2005, just after Chief Justice Roberts joined the court, to April 2026, the most recent time that the court heard arguments.

The study, prepared for The New York Times by Lee Epstein of Washington University in St. Louis and Eric A. Posner of the University of Chicago, revealed momentous changes in a cautious institution. The changes have subjected the court to additional scrutiny, seemed to encourage some justices to talk more and tested the patience of others.

The study examined trends in measurable things like which justices spoke and for how long — it did not try to ***ess the effectiveness of arguments or whether recent changes had led to more illuminating sessions.

Before the pandemic, arguments lasted an hour. Now they are on average nearly 90 minutes, But that is only an average. In bigger cases, the arguments can seem endless.

The arguments over the admissions policies of Harvard and the University of North Carolina, argued one after the other on a single Monday in 2022, stretched to almost five hours.

Asked about her strategy for covering that pair of arguments, Amy Howe, a reporter for Scotusblog, responded: “No liquids after 6 a.m.”

At a judicial conference in May, Chief Justice Roberts said he believed arguments have gotten “too long.” Addressing the problem, he said, was on the justices’ to-do list.

“I think we’ll have to look at it over the summer,” he said. The court, which will return to the bench in October, so far has not announced any changes.

‘A Totally Different Exercise’

Early in the court’s history, there were no time limits. The 1819 argument in McCulloch v. Maryland, which upheld the creation of a national bank, lasted nine days.

Since then the trend had been toward shorter arguments.

In 1849, the court capped arguments at two hours per side, for a total of four hours. Then, in 1925, the court cut that in half; in 1970, it again cut argument time in half.

That 30-minute time limit for each side was taken seriously, particularly by Chief Justice William H. Rehnquist, who led the court from 1986 to 2005. He would cut lawyers off in the middle of a sentence when they had used up their allotted time.

When Chief Justice Roberts took over, he was slightly more forgiving. But the basic format was unchanged until the pandemic. The typical argument was an unruly but productive commotion, with justices peppering the lawyers with questionsand often interrupting their answers and one another.

That changed in the spring of 2020. Unable to meet in person, the court cooked up a 20th- century solution to the 21st-century problem: they would hear arguments by telephone.

That medium, in which the justices and lawyers could hear but not see each other, did not allow for the dynamic free-for-all that had characterized arguments since at least the arrival of Justice Antonin Scalia in 1986. Instead, justices asked questions one at a time, in order of seniority. It was both civilized and inert.

Jeffrey Fisher, a law professor at Stanford who argued 48 cases over the years covered by the study, including four by phone, called those arguments “super frustrating.”

“It was just like all these little isolated free-range segments that are not very productive,” he said. “I just thought it was a totally different exercise.”

Still, with a designated turn to speak, Justice Thomas for the first time became a full participant.

He had famously spoken very rarely before the pandemic, asking questions or making comments in only six arguments from October 2005. In all, Justice Thomas spoke a total of 619 words, or slightly more than the average justice spoke in a single case, the study showed.

But during the pandemic Justice Thomas spoke at least briefly during all 68 cases heard by phone.

Back in the Courtroom

With the court’s return to the bench in 2021, the justices retained the new one-at-a-time questioning — adding it to the old free-for-all. Lawyers said they welcomed having more time to make their cases

“We actually get to finish our answers to a justice’s questions more often, rather than being interrupted mid-answer by a different justice,” said Sarah Harrington, a lawyer with Covington & Burling who has argued before the court in all three formats.

Professor Fisher said the public and the court both gained from the new approach.

“It’s a great combination of letting the collective free-for-all happen, so that they can talk with each other and maybe try and forge compromises or float new ideas or work with each other,” he said of the justices.

At the same time, he added, the justices can be confident that their own specific questions will be answered in the one-at-a-time segments “so they can hang back and let that first part take a little more shape.”

But Professor Epstein said there may be trade-offs.

“There could be benefits,” she said. “For example, more deliberation might lead to higher quality opinions. But collegial costs are possible too. Perhaps longer arguments irritate some of the justices, especially the quieter ones.”

Indeed, at a judicial conference in May, Justice Samuel A. Alito Jr. complained that arguments “can go on and on and on and on,” long past the point ”where they are contributing to the decision-making process,” Scotusblog reported. He added that there is “too much speechifying” and “too little asking real questions.”

Lawyers, who are ostensibly doing the arguing, spoke just 62 percent of the time in the years covered by the study, and justices the rest of the time. That ratio stayed relatively stable over time, even as arguments grew longer.

The split is telling, Professor Fisher said. “It’s such a wonderful, easy way to explain to somebody what oral argument really is,” he said. “It’s almost as much a meeting among the justices as it is a lawyer presentation.”

Justice Elena Kagan, in remarks at Harvard in 2013, explained that oral arguments amount to justices “talking to each other — with some helpless person standing at the podium who you’re talking through.”

In the new hybrid argument format, the justices seem to have agreed that Justice Thomas would ask the first questions of every lawyer, and he nearly always does. Still, his share of the justices’ speaking time has been drifting down each term since the court returned to the bench, the study found, landing at three percent in the term that ended in June. He is speaking much more than before the pandemic — but remains the least talkative justice.

The Most Vocal Justice

Justice Jackson, on the other hand, has emerged as by far the most talkative justice, uttering an average of 1,263 words per case, more than double the justices’ average. According to the study, she speaks 23 percent of the words uttered by the justices.

Over the past 21 terms, the closest any member of the court got to Justice Jackson’s loquaciousness was Justice Stephen G. Breyer, who was famous for unspooling elaborate hypothetical questions featuring flights of fancy like marshmallow guns (in a case about attempted robbery) and tomato children (in a case about a federal drug law).

Still, Justice Breyer, who retired in 2022 and was replaced by Justice Jackson, his former law clerk, uttered an average of 818 words, or roughly two thirds as many as Justice Jackson spoke. The runner-up to Justice Jackson in the four years since she joined the court — and in the era of longer arguments — is Justice Sonia Sotomayor, at 791 words.

His colleagues treated Justice Breyer’s professorial digressions with bemused tolerance. Justice Jackson’s extended questioning, by contrast, has been a source of annoyance to some of the other justices, The New York Times reported last October. The installation of timers before each justice to tally their speaking time has not seemed to have had a significant impact.

There are at least three explanations for Justice Jackson’s talkativeness.

One is that she was a trial judge for most of her judicial career and her speaking style may simply be habit.

“There’s no clock in district court, and there’s only one judge, and she could examine for as long as she wanted,” said William Jay, a lawyer with Goodwin Procter who has argued frequently before the court and said the justice was a good questioner.

A second reason is that Justice Jackson, understanding she will be on the losing end of many cases on a court where conservatives hold a supermajority, may view her questioning as an opportunity to reach beyond the courtroom and communicate with the public directly through the live-streamed arguments.

A third reason is that Justice Jackson is the junior member of the court, which gives her an incentive to press her points during arguments.

When the justices meet in private to discuss cases after arguments, they speak and cast tentative votes in order of seniority.

That means that by the time it is Justice Jackson’s turn to give her views, the outcome is generally already clear. If she is to have a meaningful say, her opportunity is to make her points during the arguments.

Still, if this were the explanation, it would be reasonable to find that all junior justices dominate oral arguments during their first terms on the bench. In fact, Justice Jackson’s speaking share in her first three terms was about double that of the other ***ociate justices in their own first three terms.

Those other justices mostly spoke close to the average number of words in their early years. The outliers were Justice Alito, whose share was half the average, and Justice Sotomayor, who spoke more than others but still far less than Justice Jackson.

A striking finding of the study is that Chief Justice Roberts, who used to speak an average amount, has become almost as taciturn as Justice Thomas. Over the past four terms, his share of the time the justices spoke was only six percent.

The study attributed most of the drop to what it called a tenure effect. “The longer justices serve,” the study found, “the less likely they are to participate in arguments.”

In a separate paper — “What Is Oral Argument in the Supreme Court For?” — Professors Epstein and Posnersuggested that more senior justices — who tend to be older — might speak less owing to “health, fatigue or cognitive decline.”

They also posited that senior justices may talk less because they know there is, in fact, no need to speak to win the day.

“It’s possible,” the two professors wrote, “that the more experience justices have, the less likely they are to believe that oral arguments matter much — that, in fact, they lack persuasive value — and so don’t bother to talk much.”

Mattathias Schwartz contributed reporting.