The Supreme Court as a Hot Bench

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Chief Justice Roberts recently noted that the Supreme Court is a “hot bench,” meaning a court that frequently interrupts lawyers’ presentations with questions. Indeed, he suggested that the Court, himself included, has gone too far in that direction, allowing lawyers too little opportunity to say what they deem most important. His remarks on the subject drew attention on SCOTUSblog and elsewhere. The frequency with which the Justices ask questions has attracted substantial notice in recent years, including when Justice Kagan interrupted emeritus Duke Law professor and former Solicitor General Walter Dellinger before he even got out “Mr. Chief Justice and may it please the Court.” (See the CNN report concerning the mild faux pas here.)

In his remarks, Chief Justice Roberts explained that the Justices don’t discuss cases with one another in advance of oral argument, so they may ask questions during the argument as a way of communicating their views to their colleagues. As National Law Journal reporter Marcia Coyle described it in an interview, “[o]ften, [the Justices are] talking to each other during oral arguments, and lawyers are the conduit for an idea or a suggestion.”

It hasn’t always been this way. The Justices didn’t interrupt arguments much at all in the Court’s early days. Even in the 1950s and 1960s, questions were relatively few and far between. Since then, the frequency of questions has increased, perhaps accelerating after Justice Scalia joined the Court in 1986. Former Solicitor General Paul Clement, who clerked for Justice Scalia, has asserted that Justice Scalia “changed the dynamic” with his active questioning. Others have suggested that the turning point was Justice Rehnquist’s promotion to Chief Justice (at the same time as Justice Scalia’s appointment) or that the combined effect of Justices Scalia, Ginsburg, and Breyer made the crucial difference.

Scholars have attempted to quantify the movement towards more questions. The most comprehensive study shows an advance in questioning since the mid-1980s, from about 80 questions per argument to well over 100, though the trend has been uneven. Timothy R. Johnson et al., Inquiring Minds Want to Know: Do Justices Tip Their Hands with Questions at Oral Argument in the U.S. Supreme Court?, 29 Wash. Univ. J. L. & Pol’y 241 (2009). The study also notes a trend towards longer questions – i.e., more words per question asked – a development that further sidelines the role of the attorneys in favor of intra-Court communication.

For practicing lawyers, the above may be mainly of intellectual interest. The key practical issue is how to handle a hot bench. The Chief Justice offered a few suggestions. First, he acknowledged that it is inherently difficult to handle a barrage of questions, often coming more than one at a time. He counseled against showing overt frustration with the interruptions and recommended addressing the most recent question first, returning to previous questions next. Finally, he noted that in some cases, standing silent for a moment in the face of a cavalcade of questions may shame those asking the questions into allowing the attorney time to answer. Readers with substantial appellate experience, what practice pointers do you have for handling a hot bench? And how do our appellate courts compare to the Supreme Court in this regard?

One comment on “The Supreme Court as a Hot Bench

  1. I prefer a hot bench to a stone-cold silent bench any day of the week! I think it was my second oral argument that there was not a single question from the bench. The judges did not seem to be enjoying it any more than I did; I wonder still why that case was listed for oral argument.

    I much prefer a hot bench to that experience. I’ve only argued at the NC Supreme Court once, but that bench was very collegial. The justices did not interrupt or speak over one another, and I never felt overwhelmed by a barrage of questions a la SCOTUS advocates.

    I have had the chance to argue at the 4th Circuit and be the subject of a soliloquy from the senior judge on the panel. This is a very common experience. You worry, sometimes, that a judge will eat up your time, but my experience has been that all three courts will let you go over on your time if they recognize that they have taken up quite a bit of your allotment. And my thought is that I am always getting to do more for my client than if this matter were decided on the briefs alone, so I am happy to roll with the punches.

    I think the questions really are for the good of my client – this despite my win/loss record. ;-) I would much rather know that the judge is interested in my substantive due process argument than waste time arguing about the ex post facto clause argument that I am wedded to, but no one will rule for me on in a million years.

    The only advice I have is to really listen to the judges’ questions. To be able to do that, and not be worrying about what you will say next, you have to be very well acquainted with your record and the law at issue. When I know my case inside and out, it is then possible to be able to pay attention to the court, and be able to figure out: Is he misunderstanding me? Is he throwing me a bone? Is this a question for me, or is this really a counterpoint to what she just said? And so on. And when you can figure those questions out, oral argument is really fun.

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