Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for oral argument; the length of the post-argument conference has reportedly shrunk; the exchanges in the Justices’ opinions have become more strident; and the Justices appear to relish a kind of celebrity that even their recent predecessors had shunned. Notwithstanding these changes, Judge John G. Roberts, Jr., suggested shortly before his appointment as Chief Justice that “one thing that has remained fairly constant [since 1980] has been the level of questioning” at oral argument. That conclusion was based on a comparison of two sets of cases that were argued in 1980 and 2003, respectively. Because the Justices have seemed to other observers to have become more assertive at oral argument in recent years, we decided to inquire further by comparing a set of cases from the recent past (October Terms 2010-12) with a set from a period (October Terms 1958-60) about twenty years before the start date of the Chief Justice’s study. Our empirical study, which provides two snapshots in time, combines quantitative and qualitative methods in an attempt to understand interactions among the Justices and between the Justices and counsel; how those interactions may now be different from those of a half-century ago; and the possible significance of those differences for our understanding of the Court’s role in our constitutional system. We found significant differences. In the older cases, the nature and shape of oral argument reflected what might be taken to be the traditional purposes of oral argument, but the more recent cases suggest a different dynamic. The Justices rarely allowed counsel to develop a coherent narrative, and they often used an advocate’s limited time to state their own views and to joke or argue with each other. The Justices seemed more personally invested in individual cases at the oral argument stage, perhaps because of larger staffs and smaller