Just hours after the Supreme Court heard arguments last week in an important abortion case and the day before it considered whether former President Donald J. Trump must face trial on charges that he plotted to subvert the 2020 election, Chief Justice John G. Roberts Jr. took a break to share some timely reflections on the role of oral arguments in the court’s work.
He has given the question a lot of thought. Before he joined the court in 2005, he was a leading member of its bar, arguing before the court 39 times. Since then, he has heard more than 1,000 arguments. And he has published a study of what makes for an effective oral presentation.
“Oral argument remains the organizing point for the entire judicial process,” he told an audience at Georgetown University Law Center on Wednesday that included Justices Elena Kagan and Brett M. Kavanaugh.
Indeed, he said, oral arguments are when the justices effectively begin their deliberations.
While some of the justices’ questions are clearly earnest inquiries trying to nail down facts or clarify the lawyers’ positions, much of the communication at arguments is actually among the justices.
“Because the members of our court generally do not discuss the cases too much before oral argument,” Chief Justice Roberts said, “there are two sets of conversations taking place at the argument: an obvious one between the advocates and the justices and the usually more subtle one between the justices, because we reveal by the tone and content of our questions clues about how we may be looking at the issues in the case.”
He added, “The discussion at argument frequently shapes not only the result, but also the rationale, as the back-and-forth reveals hidden complexities or concerns about how the holding in the case at hand might affect other decisions.”
That was apparent on Thursday, when several of the conservative justices said they viewed the case on Mr. Trump’s claim to immunity from prosecution as presenting an abstract question on the scope of presidential power rather than an urgent issue arising from the Jan. 6, 2021, attack on the Capitol.
Some things have changed since Chief Justice Roberts used to argue before the court, he said. His immediate predecessor, Chief Justice William H. Rehnquist was, for instance, an unforgiving stickler for keeping arguments to what was then their allotted hour. He was fabled for his ability, as Chief Justice Roberts put it, “to cut counsel off in the middle of the word ‘it.’”
Oral arguments these days can seem endless. The one on immunity, for instance, lasted almost three hours. Chief Justice Roberts said that was a consequence of developments during the pandemic, when the court initially heard arguments by telephone, with the justices asking questions one at a time in order of seniority.
“It was, of course, a dramatic change from the familiar rough and tumble in the courtroom,” he said.
When the justices returned to the bench in October 2021, he said, “we did not spend a lot of time trying to figure out how best to merge the new system with the old. We just decided to do both.”
That means that after a lawyer has answered questions in the old free-for-all format, typically for half an hour, another round of one-by-one questions follows that can last as long or longer.
The occasion for the chief justice’s remarks was the 25th anniversary of the Supreme Court Institute at Georgetown. The institute arranges moot courts to let lawyers take their arguments out for a test drive, trying out themes and soliciting advice from lawyers and law professors pretending to be justices.
Georgetown’s program is in high demand. In recent years, the institute has held moot courts for nearly every argument heard by the justices.
Chief Justice Roberts recalled his own experience with the program, when he was still a lawyer. In September 1999, he said, at the institute’s third ever moot court, he had honed his defense of a provision of Hawaii’s Constitution in a case called Rice v. Cayetano.
At the actual argument, he said, he was questioned by six justices. “Among those six inquisitors,” he said, “I won exactly zero votes.” He lost the case 7 to 2.
Chief Justice Roberts said he recently had done a little research. “I had some time on my hands last week,” he said, “and I listened to the argument.”
The loss still stung. But what struck him was the tight ship his predecessor had run.
“The audio recording of Rice v. Cayetano lasts exactly one hour, one minute and 11 seconds,” he said a little wistfully, “time that included calling the case, three advocates making their way to the lectern and adjourning the court for the day.”
