The Supreme Court announced on Tuesday that oral arguments will follow a slightly different plan when the justices return to the courtroom for in-person arguments next month. Instead of reverting entirely to the traditional “free for all” format for asking questions, the justices will adopt a hybrid approach that sets aside time for the justices to take turns asking questions, just as they did when hearing oral arguments by telephone during the pandemic. The change appears to increase the chances that Justice Clarence Thomas, who was rarely heard in the courtroom but was an active participant in remote arguments, will continue to participate when in-person arguments resume.
Notification of the change came in the new version of the court’s guide for arguing lawyers, which was released on Tuesday. Under the procedure outlined in the guide, the first part of each argument will follow the format used before the pandemic, in which the justices – after giving the advocates a brief interval at the beginning to make their opening statements – freely ask questions. During this time, the justices can presumably interrupt both the arguing lawyer and each other at will.
But after each lawyer’s time has ended, the guide explains, “each Justice will have the opportunity to question that attorney individually,” beginning with Chief Justice John Roberts and continuing in order of seniority, just as the court did when hearing arguments by telephone during the pandemic. The guide does not indicate how much time each justice will have for his or her questions, although it does direct the arguing lawyers to “respond directly to the questions posed” and avoid making “any additional arguments not responsive to the question.”
The designation of specific opportunities for each justice to ask questions appears to increase the likelihood that Thomas will continue to be an active participant, as he was during remote arguments over the past year. Thomas, who is known for being chatty and gregarious off the bench, has expressed misgivings about the court’s traditional free-for-all argument format, saying that advocates should be able to make their points without being interrupted. He has gone as long as 10 years without asking any questions at oral argument. But when the court adopted the more structured format for remote arguments, Thomas emerged as an active participant whose questions often prompted follow-ups from the more junior justices who spoke after him.
This post is also published on SCOTUSblog.