When the Supreme Court agreed this month to hear the Obamacare constitutional challenge, it didn’t surprise most Court watchers, but the amount of time it set aside for oral argument is highly unusual. That is surprising for a few reasons, most of which should be unsettling to the current administration that is defending the law. The Supreme Court’s Nov. 14 orders were a bit ambiguous on one point, but it seems to have scheduled 5 ½ hours of oral argument on issues related to the one case brought by 26 states and the NFIB. That is 5.5 times the amount allotted for the vast majority of cases the Court hears.
In recent decades, the Court generally sets a maximum of 60 minutes for oral argument in each case (usually divided 30 minutes per side), even for complex and high-profile matters that may involve two or more consolidated cases or three or more legal issues to resolve. Each year, the Court might expand oral argument in one or two cases to 90 minutes. The Court allowed 90 minutes of argument for the two appeals in the presidential recount struggle that led to Bush v. Gore (2000). More recent examples include Citizens United v. FEC (2010) (the campaign finance case President Obama tried to politicize), District of Columbia v. Heller (2008) (the DC gun case), and Boumediene v. Bush (2008) (involving detainees in Guantanamo) to name a few, were all under 90 minutes. But the argument regarding the McCain-Feingold campaign finance law in McConnell v. FEC (2003) was the only one that was over two hours in the last decade.
In the Court’s earliest days, written briefs were not even required and oral arguments could last for days on end. Oral argument in the landmark cases McCullough v. Maryland (1819) and Gibbons v. Ogden (1824) lasted nine and five days respectively. In fact, it was not until 1849 that the Court set a limit for oral argument, allocating two hours per side and requiring the parties to file briefs setting forth their arguments before the oral argument. Over the years, the Court reduced oral argument from two hours per side, to 90 minutes per side, and then to 60 minutes per side. In the 1970s, the Court reduced the time to the current 30 minutes per side. The Court sometimes allows or requires one side to split its 30 minutes (e.g., granting the U.S. Solicitor General 10 minutes of one side’s time), but it rarely grants additional time than the hour allotted, and when it does so, it is usually 10, 20, or 30 extra minutes total.
Since World War II, very few cases have been allowed more than four hours, as the Court will allow in the Obamacare argument. In the last sixty years, the biggest outlier is Brown v. Board of Education, which was first argued over three days in 1952 and again over another three days in 1953, but it also involved four consolidated cases. Since Brown, the only cases that are close to the amount of oral argument granted in the Obamacare challenges are Miranda v. Arizona (1966) (which also was four consolidated cases), clocking in at 5 ½ hours, New York Times Co. v. Sullivan (1963), at just under 4 hours, and McConnell v. FEC at about 4 ½ hours.
Besides the extraordinary number of hours the Court has set aside for the Obamacare argument, of particular note is the 90 minutes alone (50% more than a standard case) for the issue of “severability.” The issue of severability involves whether the Court must strike down the entire law if it finds any portion of it unconstitutional. That issue is usually included in the standard 60 minutes of any other case. One has to wonder why the Court thinks it is worthy to set aside 90 minutes for nothing other than a legal debate that only comes into play if it rules one portion of the law unconstitutional (most likely, the individual mandate). The obvious answer is that a number of the justices must think the constitutional challenge is strong enough that it is likely to need to decide the issue of severability—and it wants 90 minutes of uninterrupted questioning on that issue.