Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: There's something new with the Supreme Court this term. Lawyers
Speaker 1: now get two minutes at the start of their arguments
Speaker 1: to state their case before the justices jump in and
Speaker 1: start tearing their theories apart. Justice Sonia Sotomayor forgot about
Speaker 1: that two minute rule. At one of the terms early arguments,
Speaker 1: Paul Hughes was just thirty six seconds into his argument
Speaker 1: in a case at the intersection of criminal law and immigration.
Speaker 1: If this element is not present, there is no preemption.
Speaker 1: If they were applying to a college I'm sorry. You
Speaker 1: can answer that question after your time. I'm sorry, Thank you.
Speaker 1: Jordan Reuben, Bloomberg Law editor, joins me. Now, let's start
Speaker 1: by talking about what it was like before the two
Speaker 1: minute rule, when attorneys would get up to argue, barely
Speaker 1: say a sentence and be interrupted by one of the justices. Right, So,
Speaker 1: going back to most people trace this back to justice
Speaker 1: school is coming onto the court in the mid eighties.
Speaker 1: Really up through until very recently, the typical way an
Speaker 1: argument would go is that an advocate would have a
Speaker 1: difficult time really getting their argument out before being bombarded,
Speaker 1: not just from Justice Scalia, but from really all of
Speaker 1: the justices, or most of the justices anyway, with a
Speaker 1: lot of questions. So lawyer is going to argue Aspreme
Speaker 1: Court case, they know going into it that they have
Speaker 1: to be ready to answer questions really almost from the start,
Speaker 1: and might not have much free time to say whatever
Speaker 1: they want. Yeah, Justice Scalia the pace center of what
Speaker 1: they call a hot bench, which is still hot today,
Speaker 1: but not as much laughter as when Justice Scalia was
Speaker 1: on the bench. That's true. So now we have the
Speaker 1: new rule giving advocates to uninterrupted minutes to speak before
Speaker 1: the justices jump in with questions. It was unexpected. How
Speaker 1: did it come about? So it really came out of
Speaker 1: nowhere as far as everyone besides the justices themselves are concerned.
Speaker 1: Right before or the start of this term, on the
Speaker 1: first Monday of October, really right before the Court came
Speaker 1: out with this announcement and surprised everyone, not just us
Speaker 1: covering the court, but even the lawyers themselves. They were
Speaker 1: told they would actually have this uninterrupted time, at least
Speaker 1: in theory, to speak at the beginning of their arguments
Speaker 1: without being interrupted by the justices. And now that's certainly
Speaker 1: for the people who were about to start the arguments
Speaker 1: in the first weeks of the term, that was a
Speaker 1: big game change for them because they very likely prepared
Speaker 1: going into the argument of not likely being able to
Speaker 1: get much out by way of their own arguments, and
Speaker 1: they were probably preparing to get peppered with questions right
Speaker 1: from the start. So it's really a big game changer
Speaker 1: in terms of at least how the arguments are set
Speaker 1: up from the start. Do all the lawyers used the
Speaker 1: two minutes in the same way to frame the main issue?
Speaker 1: We've seen some different strategies by the lawyers in terms
Speaker 1: of being able to frame the issue. That's really probably
Speaker 1: the main phrase that's come up in all the lawyers
Speaker 1: that we spoke to for this story and writing about
Speaker 1: this new two minute rule and guidance is that they're
Speaker 1: thankful for the opportunity to at least at the start
Speaker 1: sort of set the table in the way that they
Speaker 1: want to. Different lawyers have used different strategies in terms
Speaker 1: of using not all the two minutes. Maybe they'll make
Speaker 1: a few key points and then wave the rest of
Speaker 1: their time. So really everyone is still feeling this new
Speaker 1: world out, including the justices themselves. Some of whom are
Speaker 1: having a little bit of trouble adjusting to being quiet
Speaker 1: at the beginning of the argument. How have the justices
Speaker 1: reacted to this? Have any of them said anything? The
Speaker 1: main public comments that have come out so far have
Speaker 1: been from Justice Kaigan, who, in a public talk, essentially
Speaker 1: it seems like she's really not a big fan of
Speaker 1: this new uninterrupted time. She actually recalled an anecdote from
Speaker 1: when she was arguing and she was interrupted almost right
Speaker 1: at the beginning of her argument from Justice Scalia himself,
Speaker 1: I believe it was, And she actually reflected on that
Speaker 1: argument almost fondly and seem to say that that's really
Speaker 1: how it should be. Because again and many season Supreme
Speaker 1: Court advocates who are almost skeptical of this new rule
Speaker 1: will say that they feel most effective when they're responding
Speaker 1: to the justices questions, as opposed to just standing there
Speaker 1: talking and sort of just saying what they want, which
Speaker 1: maybe will feel good, but you don't necessarily know whether
Speaker 1: that's moving the case along in the way that you
Speaker 1: want it to. Well, several lawyers told you that they
Speaker 1: don't need to use all of the time, and that
Speaker 1: struck me as odd. A lawyer who doesn't want to
Speaker 1: talk about the case for two minutes only, right, exactly
Speaker 1: a lawyer who whoever wants to stop talking at all, right,
Speaker 1: and so and again this goes back to how are
Speaker 1: you actually most effective? If you might think that you're
Speaker 1: being the most effective when you're able to get as
Speaker 1: many of your points out as you want, But really
Speaker 1: the purpose of oral argument, and the purpose of the
Speaker 1: briefing too, which happens before the argument, is to help
Speaker 1: the justices decide the case. So you could be out
Speaker 1: there talking for a full half hour, but if you're
Speaker 1: not saying anything that's convincing any of the justices who
Speaker 1: you need to convince, then you're actually really not helping
Speaker 1: your case at all, and you're probably hurting it. And
Speaker 1: one of the veteran Supreme Court practitioners you spoke to,
Speaker 1: Paul Clement, said it isn't a one size fits all approach,
Speaker 1: and he's had three arguments and used the two minutes
Speaker 1: in three different ways. Right. So we're seeing this um
Speaker 1: with someone like Paul Clement, but with the other lawyers too.
Speaker 1: It's really just sort of applying normal argument principles to
Speaker 1: this new terrain. And so it's a matter of having
Speaker 1: a different strategy for every argument, which was true before,
Speaker 1: but now just because you have this new time doesn't
Speaker 1: mean you're going to use it in the same way
Speaker 1: every time. So obviously a seasoned advocate will be able
Speaker 1: to recognize that and know either they're going to use
Speaker 1: their time to respond to certain points, maybe they're going
Speaker 1: to anticipate certain counter arguments that are going to come
Speaker 1: up later. And so, as I mentioned, everyone's really still
Speaker 1: feeling this out, and we're seeing different lawyers use the
Speaker 1: time differently or not at all. You know what surprised
Speaker 1: me about this, Jordan's that there's so much fuss about it,
Speaker 1: because I thought that lawyers would prepare as if they
Speaker 1: were going to be uninterrupted for at least two to
Speaker 1: three minutes anyway. But it seems to make the calculus
Speaker 1: really different for them. Right. It's definitely not the case
Speaker 1: that lawyers were planning on having uninterrupted time, certainly not
Speaker 1: in in recent years by any stretch. And so it
Speaker 1: does change the calculus in terms of if justices don't
Speaker 1: have questions at the beginning, you certainly want to be
Speaker 1: able to say something and it will be a little
Speaker 1: awkward if you don't have anything to say. But it
Speaker 1: certainly does change preparation to some extent because when people
Speaker 1: were preparing before this rule, they were preparing to receive
Speaker 1: questions from the start, and you know, it's still possible
Speaker 1: that justice might jump in early. You know they're not
Speaker 1: going to get in trouble. They're the Supreme Court justices, right,
Speaker 1: It's nothing bad can happen to them. But you still
Speaker 1: want to be prepared for that possibility to have a
Speaker 1: canned speech, so to speak, just in case you're able
Speaker 1: to use all that time, if not more. Thanks Jordan's
Speaker 1: that's Jordan Reuben, Bloomberg Law Editor. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg