Oral Argument: Significant Changes in Format

By Clare Cushman and Jim Duff
Scotus Scoop: Significant Change in Format
The Court is instituting a new format for the questioning of attorneys by Justices during oral argument. Credit: Fred Schilling, Collection of the Supreme Court of the United States
Over the summer, Court-watchers speculated whether Chief Justice John G. Roberts, Jr. would extend into the new Term the temporary emergency format implemented at the end of the 2019 Term and during the 2020 Term of conducting oral arguments by phone during the Covid-19 pandemic. The answer arrived in September when the Court announced it would return to in-person oral arguments in the Courtroom, but without spectators for the time being.  The new Term also features a significant change to the traditional format of oral argument in the Courtroom, however, regarding time allotted for attorneys’ arguments and Justices’ questions, by retaining one key element of the telephonic oral arguments: time will continue to be set aside for each Justice to ask questions individually in order of seniority. The new rules differ slightly from the previous Term’s allowance for questions from each Justice in order of seniority after the first two minutes of argument and instead offer each Justice, in order of seniority, the opportunity to ask a question at the end of each side’s argument.

These new guidelines, which allow for any Justice’s questions after the first two minutes of the counsels’ arguments but also provide for more structured questioning from each Justice at the end of the arguments, may result in oral arguments that last longer than an hour.  In doing so, the new format facilitates both the interests of counsel in presenting their arguments and the interests of the Court in giving each Justice an equal opportunity for questioning. The new rules can be found in the section on “Time” in Guide for Counsel prepared by the Clerk of Court.

The Court is also continuing the practice started last Term of livestreaming oral arguments to accommodate public interest in oral arguments at the Court. The public may listen to every oral argument in real time on the Supreme Court’s website.