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 [...]
Faculty Coordinators
