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