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As I think I have admitted previously, I have what some might consider an unusual habit. When I have a longer drive to make, I listen to oral arguments at the United States Supreme Court. It keeps me awake and my mind sharp, not to mention it provides a valuable opportunity to learn about current proceedings at the Court. I often reflect on what the advocates have said and done, sometimes thinking they should have argued a different point or taken a different approach.
Having listened to these arguments for over twenty years - reaching as far back as the 1970s - I’ve been struck by how much oral arguments have changed over the tenures of Chief Justices Rehnquist and Roberts. While there is continuity between the two, their styles are quite different. Oral argument has evolved significantly, and in my opinion, for the better. Interestingly, these changes have been driven by two Associate Justices and one unexpected outside event.
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Throughout the Rehnquist Court, the time limit was absolute. There was essentially no hope of an extension. When the red light came on, it signaled a firm cutoff. The moment it lit up, the Chief Justice would immediately interrupt the attorney at the podium with a polite but firm, “Thank you, counsel.” It didn’t matter if a sentence was mid-thought—everyone understood that not another word was to be spoken.
There was also no guaranteed opportunity for the Petitioner to reserve time for rebuttal. Although attorneys tried to leave the podium when the white “five-minute warning” light came on, justices’ late questions often consumed that time, sometimes entirely.
Three other features of the arguments stood out. First, the questioning from justices was completely unstructured. Unless two justices tried to speak at once, there was rarely any intervention from the Chief Justice. The justices usually self-regulated, keeping their questions reasonably brief without leaving important topics unaddressed.
Second, the justices sometimes asked questions during the Petitioner’s rebuttal time, potentially disrupting the advocate’s closing points. That said, most tried to keep these brief.
Finally, there was Justice Thomas. As he explained, he disliked interrupting counsel to ask questions, believing it disrespectful. As a result, his voice was seldom heard in the courtroom—though his influence was still deeply felt.
This strict format persisted for years and became something of a tradition. I remember being told in law school Appellate Advocacy class about the inflexible time limits and how they sometimes prevented critical questions from being addressed.
When Chief Justice Roberts took over at the start of the new millennium, the changes were initially modest. Most notably, he no longer cut off advocates mid-sentence when the red light came on. Attorneys, conditioned by decades of Rehnquist’s strict timekeeping, would stop mid-thought, only to hear Roberts say, “You may finish your sentence.” Similarly, if a Petitioner lost their rebuttal time due to prolonged questioning, Roberts would usually allow a brief rebuttal and extend the Respondent’s time accordingly.
A few years later, the Court began expanding oral argument time in high-profile cases. Under Rehnquist, arguments almost never exceeded an hour. Now, litigants were being notified in advance that they had more time. In the Affordable Care Act case, for example, each party and the amicus were granted extended time. Two-hour sessions became increasingly common, ushering in a new era of longer, more thorough arguments.
The arrival of Justice Sotomayor introduced another shift. Her questioning style was rapid and relentless, sometimes not even allowing counsel to begin their argument before being interrupted. On several occasions, she interrupted before a response could be given, eventually prompting a notable exchange with Justice Kennedy. After one of his questions was interrupted within seconds, he interjected, “I would like an answer to my question, please.” Clearly, a procedural adjustment was necessary.
Soon after, the Court adopted a new approach: allowing advocates a short, uninterrupted opening before questioning began. But then came a dramatic outside event that would change everything - COVID-19.
For the first time, the Court had to conduct arguments by telephone, with the Justices and attorneys in separate locations. Free-for-all interruptions were impossible in this format. The Court adapted by implementing a structured format: each Justice, in order of seniority, had a set period to ask questions.
This produced an unexpected but welcome result: Justice Thomas began speaking regularly, asking questions of each party. Without interruptions, each Justice could develop a sustained line of inquiry over several minutes. The value of this approach was immediately evident.
When in-person arguments resumed, the Court introduced a hybrid model that blended the best aspects of previous systems. Now, each party begins with a short, uninterrupted opening—usually under two minutes—before questions start. While the Chief Justice could begin the questioning, he always defers to the senior Associate Justice—Justice Thomas—who reliably asks a question or two before stepping back.
The core of the argument is still freeform, with Justices asking questions in a style reminiscent of the Rehnquist era. However, they now take greater care not to interrupt each other and ensure that prior questions are answered before new ones are posed. On rare occasions, the Chief Justice may suggest that it’s time for another Justice to engage.
When the red light appears, rather than cutting off abruptly, the Chief Justice allows the pending question to conclude. He then polls the Justices in order of seniority to see if they have any final questions—a phase I call the “seriatim round.” During this round, Justices often pursue a sequence of questions but are mindful to limit lengthy answers, often closing with, “Thank you, counsel. That’s what I needed.”
Rebuttal no longer requires time management from the Petitioner. The Chief Justice simply invites the Petitioner to close with two to three minutes of uninterrupted time.
Having listened to many arguments, I’m struck by how much more information, nuance, and legal development occurs now compared to the Rehnquist era. While arguments often run two hours or more, they are far more comprehensive and worthy of the nation’s highest - and most respected - court.
Hearing Justice Thomas’ voice regularly is a significant improvement. I strongly believe in the public airing of diverse viewpoints and the value of robust legal debate. Alongside Congress, the Supreme Court is one of the highest examples of this principle. Justice Thomas’ questions, juxtaposed with those of his colleagues, enrich the legal dialogue and support more informed decision-making.
Perhaps the most welcome change is the Court’s newfound ability to explore not only the facts of a case, but also the broader implications of its rulings. While Justices like Kennedy and Breyer always sought to ask forward-looking questions, the seriatim round now provides the space for this to happen consistently. This has improved the quality of the Court’s opinions - on both sides of contentious issues.
From a practical perspective, there’s only one downside: I can no longer predict how many argument sessions I’ll be able to fit into a long drive, as they’re no longer tidy one-hour blocks. But I can live with that.
