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At the Supreme Court, even time is up to interpretation

CNN logo CNN 3/3/2021 By Joan Biskupic, CNN legal analyst & Supreme Court biographer
a large clock mounted to the side of a building © Provided by CNN

"Life is short," Chief Justice John Roberts said during a Supreme Court oral argument session in January. "They only have so much time."

Roberts was referring to Federal Communications Commission rule changes, but he could easily have meant his eight fellow justices as the court continues to work remotely during the coronavirus pandemic.

The justices have heard oral arguments by phone since last May, but only in recent weeks has the chief justice imposed a new procedure requiring individual justices to watch the clock to know when they have hit or gone over their allotted three minutes apiece for questions to each side of the case.

"I'm out of time," Justice Clarence Thomas said during arguments in a voting rights case Tuesday. "My time is up," Justice Samuel Alito said a few rounds later. "I'm sorry, my time is up," said Justice Elena Kagan. "I'm out of time," said Justice Amy Coney Barrett.

And it was not just Tuesday during an intense two-hour argument featuring four lawyers that they were watching the seconds tick. Last week in a Fourth Amendment police case, Alito said, "I'm out of time." In the same session, Justice Neil Gorsuch began a question to a lawyer, "With my little time left. ..."

Then there was Justice Sonia Sotomayor in January's FCC case, telling a lawyer, "I think you've gone over my time." Kagan said in the same argument session: "I think my time is up, so I'll quit there."

This time-conscious pattern contrasts sharply with last year, when some justices plowed through limits and Roberts drew criticism for letting male justices consume more time than the women. It is clear that Roberts has handed off much of the clock-watching and most of the enforcement, although he repeatedly had to keep a lawyer within his limits on Tuesday.

Oral argument sessions, now held via telephone because of the pandemic and livestreamed, offer a window into the nation's highest court and the substantive approaches of individual justices to cases from the Affordable Care Act to religious rights to voting protections.

Lawyers for each side try to present their best case, emphasizing key points from written filings and troubleshooting justices' queries. The goal: persuading at least five of the nine for a majority.

But the telephonic sessions that replaced in-person courtroom arguments present challenges.

Lawyers cannot see the justices' faces to read whether they are satisfied with an answer. And instead of the traditional practice of any justice asking questions at any point to develop lines of inquiry, each justice gets a set amount of time for questions to be asked in order of seniority.

The result, more akin to a congressional committee hearing, can offer a hodgepodge rather than a comprehensive airing of key legal issues. Without seeing the justices' faces or having more time for follow-up questions, lawyers and other observers remain in the dark regarding whether sticking points have been sufficiently addressed.

More practically, the court has declined to reveal much about its new procedures. Its officials refuse to confirm to lawyers or to journalists how much time each justice has to question a lawyer.


Video: Hear Supreme Court justices argue controversial Arizona voting law (CNN)

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Experienced advocates who listen regularly agree the standard is three minutes per justice for each lawyer and have been preparing with all manner of devices, from iPhone timers to tiny hourglasses. Some keep their own timers at hand during the arguments.

"I try to be very mindful of the time," said Kannon Shanmugam, who has argued three cases to the justices telephonically, with a fourth scheduled for later this month. "I have a little timer on my iPad. I run a timer just like they do and keep an eye on it."

Shanmugam resets it for three minutes every time a new justice begins a round of questions.

The court's public information office declined to provide details about the justices' method for timekeeping or to address how the justices might observe the total time each consumes during an argument.

Changes from last term

Last May, when University of Michigan Law Professor Leah Litman studied the Supreme Court's initial telephonic arguments, she found gender and ideological disparities.

"Justice Alito spoke and was allowed to speak much more than the other Justices, and the conservative male Justices had the longest total questioning periods and the longest individual questioning periods," Litman wrote. "Their female colleagues, by contrast, received the shortest questioning periods."

Litman also wrote that moderating the arguments likely detracted from Roberts' ability to focus on his own questions.

During arguments in a census case last November, Alito persisted as Roberts tried to interrupt and call upon Sotomayor to begin her questions. "If I can move on to my second point," Alito said as he continued to address New York Solicitor General Barbara Underwood, "I want to give you six categories of people and ask you to answer yes or no, to the extent you can, whether you think each of these -- people in each of these categories -- must be counted for apportionment purposes."

How lawyers are preparing

To minimize the justices' frustrations and maximize their own points, lawyers have been trying to provide concise answers.

Ruthanne Deutsch, who has argued often in appeals courts, appeared for the first time before Supreme Court justices in the January FCC case. She said that might have been an advantage.

"I trained specifically for this format and I didn't have any other habits I had to unlearn," she said. "I just embraced it."

Deutsch said she had spent weeks working out "the best and crispest" answers, using an old-fashioned three-minute hourglass timer. Her goal, she said, was not to speak as much as possible, but rather to allow the justices to air as many questions as they had for her.

For the actual argument session, she abandoned the hourglass, fearing any timer would distract her.

Another argument will be held on Wednesday, and the justices will continue with scheduled sittings at the end of March and the end of April.

"I think the format was originally quite alien for everyone," said Shanmugam, adding that while the justices and advocates have adapted, lawyers remain uncertain about whether their points are registering.

"You're not getting any feedback except from the person who is asking you questions," he said. "It feels like you're arguing into a void."

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