The U.S. Supreme Court advises that advocates now generally will get two minutes of uninterrupted argument time at the start of a session.

In the rarefied world of U.S. Supreme Court practice, change comes slowly, and traditions are held dear.

Which is why the court's sudden announcement Thursday that advocates will be given two minutes of uninterrupted time at the beginning of oral argument is such a big deal.

"This is a dramatic change," said David Frederick, a partner at Kellogg, Hansen, Todd, Figel & Frederick and author of a book about Supreme Court advocacy that includes a chapter on how to handle the opening minutes of oral argument. "For the last quarter century, advocates have had no expectation of getting to speak more than a couple of sentences before being interrupted with questions."

Frederick added, "With this change, advocates will have to really think hard about how to deploy those two minutes."

The genesis of the two-minute respite is unknown, though several justices have openly empathized with advocates who have to field a barrage of questions from the hot nine-justice bench without uttering a word of their own choosing.

The change was promulgated, not as a rule of the court, but in pages seven and eight of the newly revised "Guide for Counsel" issued by the clerk of the court. It states that justices "generally" won't ask questions of either party in the case during the first two minutes of their argument time.

That caveat has already spawned speculation that eager justices might ignore the plan and jump in early, or that skilled advocates might show off their prowess by signaling to the justices that they don't need two question-free minutes.

Here's a roundup from social media of some of the things advocates are saying about the change in argument format:

>> Ruthanne Deutsch of Deutsch Hunt PLLC: "Also maybe to let the advocate tee up the issues and allow the justices to focus their questions after sussing out strengths and weaknesses of both case and lawyer. Oral arg prep for #SCOTUS args just got VERY different."

>> John Elwood of Arnold & Porter: "Given the increased specialization of the #SCOTUS bar, I expect this opening precis to be the most exquisitely crafted persuasive prose the advocate has written since their college application essay—or their previous #SCOTUS argument."

John Elwood, above right, outside the U.S. District Court for the District of Columbia. Photo: Diego M. Radzinschi/ ALM

>> Sean Marotta of Hogan Lovells: "Shock wave through the #SCOTUS bar. (I bet advocates for next week are now scrambling, realizing they'll need to prepare two minutes of material!)"

>> Lindsay Harrison of Jenner & Block: "I feel like it's a huge opportunity for respondents, assuming they use it like rebuttal to react to key points made during petitioner's arg, and kind of a waste for petitioners."

>> Sarah Harrington of Goldstein & Russell: "Very interesting change. I've always waived opportunities for uninterrupted time at argument, but there are certainly times when it would have been nice."

Sarah Harrington of Goldstein & Russell. Credit: Diego M. Radzinschi

>> Orin Kerr of University of California Berkeley School of Law: "I find this a bit puzzling. I've always assumed argument is wasted time until the 1st question is asked; why extend that? Maybe for less experienced counsel, to help them feel more comfortable?"

>> Garrett Epps of University of Baltimore School of Law: "Has anyone told Justice Sotomayor?"

>> Kent Greenfield of Boston College Law School: "I can't remember a single case I've ever witnessed or listened to in which the first Q occurred after 2 mins. So this is a big change in practice. Let's see how long it lasts."

 

Read more:

How to Tell a Justice They're Wrong

Sotomayor, Kagan Are Interrupted the Most at Oral Arguments: Study

Arnold & Porter Snags SCOTUS Veteran John Elwood From Vinson & Elkins

Supreme Court Advocates Push Back on 'Harmful' Proposed Word Limits

Bananas for Breakfast … And More Advice for SCOTUS Advocates