This morning, the first Monday in October, the Supreme Court of the United States gets back in business. The “Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States,” available here, has been revised to state as follows:
“The Court generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument. The white light on the lectern will illuminate briefly at the end of this period to signal the start of questioning. Where argument is divided and counsel represents an amicus or an additional party, the white light will illuminate after one minute.”
Previously, Justices could, and did, interrupt counsel’s argument at any time, including right as they began. Giving counsel two essentially uninterrupted minutes to open their respective arguments is an innovation in practice at the Court.
The Supreme Court of New Jersey has long had a comparable practice. Counsel arguing there are offered the opportunity of a five-minute opening without interruption. Counsel are asked, in advance, to state whether they wish to take advantage of that opportunity. Most counsel do so, though there are times when counsel may opt to waive that and go right into colloquy with the Justices. There are valid reasons for either course, and I have gone both ways in my own arguments before the Court.
There are many things that the Supreme Court of the United States can learn from the Supreme Court of New Jersey, including the desirability of avoiding sniping at other Justices in written opinions. The innovation of a two-minute uninterrupted opening is one of those things, and it will improve the process before our nation’s highest Court.