//  10/19/20  //  Commentary

The Supreme Court just wrapped up its October sitting, which is now the second sitting that the Court has conducted telephonically because of the pandemic. After the first sitting last May, I calculated the average questioning period each Justice receive and the total amount of time each Justice received for questions and answers. (That piece will be published in full soon.) In the new telephonic format, the Chief Justice has the additional responsibility of policing the amount of time each Justice received. And in the May sitting, the Chief struggled a little bit to enforce those rules evenhandedly, particularly when it came to Justice Alito, and particularly in the Court’s more high-profile cases. He also enforced the rules in a somewhat uneven manner, interrupting only his more liberal colleagues.

This time around, in the October sitting, I think things improved, at least as to the amount of time each Justice received per questioning period. I think two things helped with this – first, the Court did not have any of the particularly high-profile cases that may divide the Justices along ideological lines, and second, it appeared as though all of the Justices were trying to enforce the time limits, rather than just the Chief Justice. Still, however, Justice Alito spoke the most, and most per questioning period, and the only Justice that the Chief interrupted was a Justice appointed by a Democratic president, Justice Breyer, even though Justice Breyer had the shortest total questioning period of any of the Justices. (The interruption occurred in City of Chicago v. Fulton, and from the audio, it is possible that the Chief Justice did not intend to cut off Justice Breyer, as he and Justice Breyer both began speaking at roughly the same time.)

For those of you who might be interested, these are the total amounts of time, in seconds, each Justice received by questioning period (with a note if a Justice took up the Chief Justice’s invitation to ask questions after all of the Justices had finished and there was time remaining).

  1.      Justice Alito: 4991
  2.      Justice Kagan: 4774 (would be 4863 with additional questioning in Rutledge v. Pharmaceutical Care Management Association)
  3.      Justice Sotomayor: 4554 (would be 4702 with additional questioning in City of Chicago v. Fulton)
  4.      Chief Justice: 4476
  5.      Justice Gorsuch: 4386
  6.      Justice Kavanaugh: 4342
  7.      Justice Thomas: 4037
  8.      Justice Breyer: 3770

 

Here is the list of the average questioning periods across all questioning periods (again in seconds):

  1.      Justice Alito: 188
  2.      Justice Kagan: 183
  3.      Justice Sotomayor: 175
  4.      Chief Justice: 171
  5.      Justice Gorsuch: 158
  6.      Justice Kavanaugh: 157
  7.      Justice Thomas: 155
  8.      Justice Breyer: 145

 

And here is the list of average questioning period (in seconds) per questioning period used. This excludes questioning periods when a Justice passed:

  1.      Justice Alito: 188
  2.      Justice Kagan: 183
  3.      Justice Gorsuch: 182.7
  4.      Justice Sotomayor: 182.1
  5.      Justice Breyer: 179
  6.      Chief: 171
  7.      Justice Thomas: 168
  8.      Justice Kavanaugh: 167

 

As I mentioned, the distribution of questioning periods was more evenhanded this argument session than in the May session. We will see if that is because the cases from this sitting were less high profile and less likely to divide along ideological lines than some of the other cases on the Court’s docket, including in the November sitting when the Court hears City of Philadelphia v. Fulton and the challenge to the ACA. 

The more evenly distributed questioning periods may also reflect the fact that all of the Justices appeared to do more policing of their own questioning periods, rather than relying on the Chief Justice to do it all. As we mentioned on Strict Scrutiny, many of the Justices, perhaps unconsciously, alluded to the fact that they were watching their own time limits. In Rutledge, Justice Breyer cut off an advocate and said “Forget that question because I don’t have time and I can’t be clear enough.” Also in Rutledge, the Chief Justice and Justice Sotomayor referred to watching their own time periods. Justice Gorsuch said something similar in Ford and in Tanzin, as did Justice Alito in Texas v. New Mexico. In Texas v. New Mexico, the Chief Justice allowed Justice Alito to continue his questioning period because Justice Breyer had passed. However, the Justices who followed Justice Alito did not also receive longer questioning periods.

Of all of the Justices, Justice Breyer may have done the most to try and police himself. As I noted above, in Rutledge, Justice Breyer seemed to express frustration that he could not ask a question clearly and quickly enough to get an answer in the time period he was allotted. I think he may have tried to compensate for that in subsequent arguments.  Justice Breyer elected to pass more questioning periods than any other Justice. In the first week of arguments, he passed one round in Rutledge and one round in Texas v. New Mexico. In the second week, he opted out of questioning periods in three of the four cases that the Court heard – City of Chicago v. Fulton (after having been interrupted by the Chief), Torres v. Madrid, and Peredia v. Barr. Justice Breyer may have been trying to “bank” up questioning time in order to ensure that he had enough time to press the side for which he had more questions. At least, I hope that’s why he passed – and that it’s not because he’s feeling unwell or down.

 @LeahLitman


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

Versus Trump: The Law Headed Into The Election

11/2/20  //  Commentary

Will this be the last Versus Trump before Trump loses reelection? Who knows, but, on this week’s episode, Jason and Charlie discuss key theories that will shape which votes count. Listen now!

Charlie Gerstein

Civil Rights Corps