It used to be said of William Rehnquist when he was Chief Justice that he would cut off a lawyer in mid-syllable if that was necessary to enforce the Supreme Court’s time limits at its hearings. The Supreme Court is now demonstrating, over and over, that time limits don’t really mean that much anymore.
That was perfectly illustrated on Monday, when an important argument in a case over government secrets – scheduled for one hour and 20 minutes – actually ran to two hours and six minutes.
The federal government’s lawyer turned 30 minutes into 51 minutes and 29 seconds, a lawyer for five FBI agents had 10 minutes but was at the lectern for 11 minutes and 25 seconds, and a lawyer for three California Muslim men parlayed his 40 minutes into 62 minutes and 11 seconds. That adds up to about 46 minutes over.
Before going any further with this analysis, it is probably important to anticipate the inevitable critics who will argue that no one cares about time limits, anyway. So: one should stress that there is nothing sacred about limiting the time the Supreme Court uses to hear a case and should concede that it is of small consequence in the grand scheme of things if hearings do run longer; an added 46 minutes, for example, is not going to bog down the Court.
It is perhaps important, too, to suggest that, the longer these hearings go, the more chance the Justices get to probe issues that are sometimes very complex and the more opportunity lawyers have to try to shape answers that help their cases. The listening public (and the public now gets to hear the arguments “live”) has more chance to learn how the process works.
To be fair to the Court, it already recognizes that some cases do need more time. For example, although it is customary for each case to get one hour, divided evenly between the two sides, the Court does add minutes when there are more than two lawyers appearing. That often happens because the “extra” lawyer is representing the federal government, and the Court is exceedingly generous in giving its co-equal branch more time at the lectern.
In the ten cases that are being argued during the current two-week sitting, six were scheduled for extra time. Today’s case about government secrets got the most added time, 20 minutes.
Being further fair to the Court, it appears that it is experimenting with how to conduct its hearings, trying a different approach during the pandemic when no one could be in the Court chamber, and using a modified form of that approach now that hearings are being held in the chamber again. Each version has had some flaws, but the Court deserves credit for trying something new.
With those preliminaries out of the way, however, one has to confront some interesting (even if not world-shaking) questions: (a) why have time limits at all or why not at least make them more flexible, up front, (b) why not figure out, in advance, which cases are likely to deserve more time because of their complexity or their obvious importance — and not just because more than two lawyers will appear, (c) what’s the explanation for running over the limits, and (d) is the extra, unscheduled time worthwhile?
The answers to each should proceed against a background assumption (one not held by all seasoned Court-watchers, but mostly proven by history): the most value in holding public hearings is to give the Justices their first chance to talk to each other at length, through their questions and comments, in order to begin sorting out potential outcomes when they move later to private deliberations on how to rule. It is simply not true that hearings are to benefit the lawyers; they have plenty of opportunity to craft their arguments, in two rounds of extensive written briefing before any hearing. If they haven’t made their case before they stand up, an oral argument – frequently interrupted and moving at a hectic pace – is probably not going to do it for them.
To those questions, then:
- Time limits are a reasonable form of discipline for both the Justices and the lawyers. Decades ago, a Supreme Court hearing could run over several days; in the famous “Dartmouth College case” on the rights of private corporations, for example, the hearings in 1818 continued for three days. Today, the Supreme Court simply would not get its work done if it spent that kind of time. So, it figures that it has to have some limits, and those do make both the bench and the bar focus more tightly on what is at stake.
- If the Court is going to continue deciding fewer than 75 cases in each nine-month term, it could easily give up the habit of only holding hearings (with few exceptions) in the mornings. Allowing for a break for lunch, they could expand hearing time almost routinely – but that doesn’t make sense for every case; 60 minutes is quite enough for many cases. But it doesn’t take much experience watching the Court to be able to pick out the cases that are going to rank among the hardest or most significant of each term. Today’s case about government secrets was an obvious one, as the extra 46 minutes showed.
- Hearings are now running longer – in almost every case – because the Justices are experimenting with an unusual hybrid form of hearing. It assigns time limits for each segment of a hearing, and in those spans of time, the Justices can ask questions any time they have an urge to do so, with no order or preference (although there is the curious, and unexplained, habit these days of letting Justice Clarence Thomas ask the first question almost every time this supposedly spontaneous questioning begins). What is adding to the time is that, once a lawyer’s time has expired, the Justices then can ask questions in order of seniority – if they have any that they did not get to ask earlier; frequently, they do – and there is no time limit. (For example, in today’s hearing, the lawyer for the Muslim men who had been targeted for electronic spying by the FBI finished his allotted 40 minutes – a period filled with tough questions — but then fielded additional questions for about 22 minutes more.) If the Justices at some point sense that this is adding too much time, they would be free to reconsider. They have definitely benefitted from their decision to abandon the one-at-a-time, seniority-based questioning that they used throughout each hearing during the pandemic. when they all were taking part remotely.
- The final question is the easiest to answer: Yes, the added time is beneficial. Time after time, a hearing produces more and more clarity, and shakes out the vital ingredients of the tougher issues. The Justices have more chance to play off of each other’s questions and comments, and their own decision-pondering conversations that follow the hearings very likely are being improved. Perhaps there will come a time when that perception is shared by the Justices, too, and they will switch again — to a more sophisticated management of their hearing calendar. Probably the best way is to schedule hearings longer, on purpose, but allow all of the time to be a free-wheeling exchange, abandoning the hybrid system now in use. Chances are, the Justices can be trusted with the added freedom it would give them.