The Supreme Court’s decision to set aside more than five hours to hear arguments on the constitutionality of President Barack Obama’s Affordable Care Act evokes a time when the justices would spend hours and even days listening to legal orators wax poetic about the issue at hand.
However, one should not expect any grand oratory or monologues when the justices convene to hear arguments about Obamacare.
“The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours,” longtime Supreme Court reporter Lyle Denniston wrote on the SCOTUSblog
. “The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.”
The court typically grants review to about 80 cases a year, down from about 150 cases in the 1980s. An hour of oral argument is set aside for each case, with opposing sides getting a half hour each to make their case to the nine justices that typically pepper counsel with questions.
Cases with more than two parties or cases that are joined together because they present similar issues can get extra time, usually no more than two hours. The Affordable Care Act cases will be heard over a two-day period in March, Denniston notes.
However, at the dawn of the court’s history, there were no restrictions on the time allotted to arguments. Lawyers were allowed to orate for hours and even days without interruption. It wasn’t until the mid-1800s that limits were placed on the practice through the adoption of rules mostly as a result of an increasing workload. Questioning of counsel began to appear after the Civil War.
“In contrast to their rather bleak surroundings, the Court's first advocates cut charismatic figures. It was the golden age of American Oratory, and lawyers such as Daniel Webster and William Pinkney delivered their arguments without any limitation on time,” Steven Shapiro, a former deputy solicitor general, said in a 1999 address before the Supreme Court Historical Society. “Arguments in the Supreme Court sometimes lasted as long as ten days.”
Daniel Webster would not recognize the oral arguments sessions in today’s Supreme Court. Lawyers appearing before the court barely are able to get a sentence out before being peppered with round after round of withering fire from the bench. The questions can be short or elaborate and often take the form of hypotheticals designed to tease out consequences.
The experience is so intense that lawyers typically hold mock sessions before appearing before the court.
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