’Tis the season to propose reforms to the Supreme Court. A Presidential Commission is holding hearings on Court expansion, term limits for Justices, and other proposals. As I have previously explained, there ought to be bipartisan support for some changes. However, the very polarization in Congress that has led for some to call for dramatic reforms almost certainly dooms any bold recommendation that might emerge from the Commission.
Meanwhile, the Court itself could implement more modest reforms that would not address the concerns that led to the Presidential Commission’s creation but could be useful nonetheless. In particular, we might ask how the Court could learn from the experience of the last year and a half, when the COVID-19 pandemic led the Justices to conduct their oral arguments remotely.
To be sure, the surge in cases fueled by the delta variant and vaccine hesitancy may mean that the Court will continue to operate under its COVID-19 protocols for some time. Eventually, however, in-person sessions will resume. How, if at all, might procedures change based on what happened during the telephonic arguments?
That question frames a symposium on SCOTUSblog. Rather than rehash each specific point made by the participants in that discussion, I shall use the balance of this column to offer two reforms that build on the observations of others and my own experience. As I shall explain, what we learned during the pandemic is that the Supreme Court is both too much and too little like an elementary school.
Stay in Session
As a young lawyer in the Justice Department during the Reagan administration, John Roberts wrote a memorandum in which he observed snarkily “that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” Perhaps today he would disagree, pointing to work the Court does during the summer months to prepare for cases to be argued when sessions resume in October—much as professors like me bristle when, while hard at work on our scholarship, we hear people characterize our summers as a time of vacation.
Nonetheless, the young Roberts was not entirely wrong. The Court’s term begins on the first Monday in October and runs until the following October, but the Court invariably issues all of its opinions by the end of June or early July, taking a long hiatus before hearing cases again. Given the limits of older forms of transportation and communication technology, that practice may have been necessary in the eighteenth and nineteenth centuries, but it makes little sense today—which is why the lower federal courts are in continuous session. The Supreme Court could be as well. Avoiding a long recess would have multiple benefits.
First, as Justices across the ideological spectrum have observed, there is often insufficient time for drafting and polishing opinions in cases argued in March or April. Why should the Court take six months to produce an opinion in a relatively simple case argued in October (as it sometimes does) but only two months on a complex or controversial one argued in April? Abolishing the late-June/early-July deadline would enable the Justices to produce high-quality opinions in all cases and would not likely lead to long delays, given the Court’s control over its own docket.
Second, the need to pack all of the cases into seven months of arguments makes it difficult for the Court to add time for arguments on an emergency basis, thus expanding the so-called shadow docket of cases in which the Court issues important opinions without the benefit of full briefing and argument. Spreading cases out over the whole year would allow a bit more flexibility.
Admittedly, the foregoing observations could have been made before the recent experience. Indeed, the Court has in some extraordinary instances reconvened early. For example, in 2009 the Justices heard oral argument in Citizens United v. FEC almost a month ahead of their regularly scheduled Term. But doing so was cumbersome. Now that we know that the Court can give full consideration to a case without the need for all or any of the Justices to be physically present in Washington, they can more frequently convene virtually during what had been the “off” months.
To be clear, I am not proposing that the Justices hear as many cases in August as in November. I am simply suggesting that the Court base its schedule on the availability of twenty-first-century technology.
Exactly how to use remote technology raises other questions. During the last two Terms, the Court conducted oral arguments by telephone, with the Chief Justice calling on his colleagues in order of seniority. Reactions were mixed.
On one hand, the taking-turns approach led to the surprising emergence of Justice Clarence Thomas as a leading figure during oral argument. When it was his turn, he asked interesting and probing questions, shedding the reticence that had characterized his in-person approach for decades. On the other hand, as Lyle Denniston observes, the one-at-a-time approach of the telephonic arguments inhibited the sort of free-flowing interplay among the Justices and advocates that can be illuminating.
Accordingly, Steven Mazie usefully suggests a hybrid system—a round of questioning in which the Justices take turns followed by a more open-ended segment. That strikes me as an excellent idea, but I want to offer a friendly amendment to Mazie’s proposal: rotate the order of questioning from one argument to the next. An elementary school teacher would not call on the same child first in every class. Neither should the Chief Justice always follow the same order.
When my children were in elementary school, I coached their youth softball teams. The league required a circular batting order. If Lucy was in the on-deck circle when a game ended, she would lead off in the next game. The rule ensured that over the course of the season, everyone had almost exactly the same number of at-bats.
Rotating who asks the first question at oral argument is not necessary to ensure equal question time. During the telephonic arguments, Justices Kavanaugh and Barrett—the most junior Court members—were allotted the same amount of time as the Chief Justice and Justice Thomas—the most senior. Nonetheless, there is a huge advantage to asking an early question. A Justice who asks an early set of questions can frame the issues in a way that affects both other Justices and the advocates.
Is that unfair? Not exactly. Advantaging more senior Justices over more junior ones differs substantially from advantaging one participant in youth sports over another.
Yet fairness is not the only consideration. By consistently privileging the more senior Justices over the more junior ones for purposes of agenda setting, the existing approach deprives the Court of the sort of information that might emerge if the Justices took turns setting the agenda. Mixing up who goes first could produce unexpected results.
Indeed, the Court could go even further—not simply changing who asks the first question, but changing the sequence of questioning. Rather than always following Justice Sotomayor and preceding Justice Gorsuch, Justice Kagan might be sandwiched between two other Justices from time to time.
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How the Court conducts its oral arguments is obviously much less important than how it decides the merits of the cases it hears. Yet that very fact—the absence of any high stakes, much less any ideological ones—suggest that this may be an area in which productive reform is possible.