Participatory Methods at Supreme Court Oral Argument

Participatory methods allow more people to share their voice in decision-making processes. Recent changes to the structure of Supreme Court oral argument have led to dramatically more participation—including from the typically taciturn Justice Thomas.

Oral Arguments and Justice Clarence Thomas

Supreme court oral arguments are typically open-ended, free-wheeling affairs. There is no facilitation to guide discussion, and only the most basic structure is in place for the 60-minute argument: advocates for each of the two sides have 30 minutes to make their case; as soon as the advocate begins speaking, justices can begin interjecting to ask questions and to direct discussion. It can be a competition to speak, with justices often interrupting the advocates and each other to make their points—except that one justice in particular almost never participates.

Justice Clarence Thomas rarely speaks at oral argument. He’s known for his “quiet, stoic demeanor during oral arguments.” Supreme Court statistics show that Thomas has spoken at only two oral arguments in the last 15 years. A question from Thomas is so rare that when he does speak, media outlets report on it. Thomas has previously shared his views on oral arguments, saying that he holds back as a show of respect for the advocates who are in the courtroom to present their case—not to argue it with unnecessary intensity. Thomas has said: “I don’t see myself as a debate partner or opponent.” Lots of media outlets have analyzed and criticized Thomas’s approach to oral arguments—the New York Times hosted a panel discussion, while the New Yorker has characterized his silence as disrespectful. Law reviews have also taken up the issue of Thomas’s oral argument strategy.

Yet he is a prolific writer—in the 2018–2019 term, for example, he authored the most opinions of any Justice. And in the 2019–2020 term, he again authored the most opinions. So he clearly has much to say, just not in the adversarial, open-ended format of oral arguments.

New Approaches to Remote Oral Arguments

So—could oral argument be designed differently to allow more people to speak? The COVID—19 crisis has opened new possibilities. For the May sitting, arguments are now being heard live via telephone, with new protocols and structures for asking questions: following the introduction from Chief Justice Roberts, the Associate Justices then have the opportunity to ask questions in turn in order of seniority, with each Justice allotted up to 3 minutes in speaking time. During the allotted 3 minutes, other justices may not interject. Chief Justice Roberts, in addition to asking his own questions, now serves in the new role of meeting facilitator by keeping time and moving the conversation from one justice to the next. This is revolutionary in introducing new rules of engagement for speaking at the oral arguments, and the results have been remarkable.

Justice Thomas has asked questions at all 10 of the final 10 arguments of the term. So during the period 2006–2020, Justice Thomas spoke at 2 oral arguments. Yet now that the oral arguments offer a more structured approach to participation, Justice Thomas has spoken at 10 arguments in a matter of 2 weeks—an unprecedented rate for the normally taciturn Justice. As usual, Thomas’s oral argument engagement has been reported on in the national media, with headlines like “Pandemic proves Justice Thomas does have something to say.” Indeed, the justices can choose to yield their time in this new format (and a few have in some instances), but Justice Thomas has used his time at each of the 10 oral arguments that have been governed by the new rules. Where previously Justice Thomas did not wish to “fight for time” in an unstructured meeting, he now diligently contributes to the argument with the new facilitation methods that help all participants know how and when to participate. Viewed in relation to his historic levels of engagement, Justice Thomas’s increased participation in oral argument can be seen as an example of facilitation structures bringing more voices to the table.

But Justice Thomas isn’t the only beneficiary of these new participatory methods. Analysis shows that 8 out of 9 Justices and both advocates now speak more words per turn, and 6 out of 8 Justices speak more words overall:

“This likely has to do with eliminating justices from competing for talking time and instead offering them uninterrupted interactions with the attorneys.”

The Supreme Court’s new participatory facilitation has resulted in more people speaking more often during argument. This has led to better outcomes for better argument and a better experience for the public listening in, who can now see that oral argument is indeed a process “intended to gather information, and not just be a political scrum.”

Participatory Methods for Better Meetings and Decisions

As someone interested in participatory methods, I see the new format of Supreme Court oral arguments as evidence that meetings can be made to be more inclusive and empowering by having some element of facilitation and structure. While not all of our meetings and decisions in libraries are so high stakes and politically-charged as the Supreme Court, the principles of participation can be applied in both contexts as a way to bring more people into the decision-making process. A few good resources on this include:

• Anti-oppressive Facilitation For Democratic Process: Making Meetings Awesome For Everyone
• Run Meetings That Are Fair to Introverts, Women, and Remote Workers
• Liberating Structures: Unleash and Involve Everyone

The idea behind a participatory approach to meeting facilitation is that it helps people work through ideas and gives an avenue for sharing with the full group, leading to a more inclusive discussion that helps decision-makers move forward with better information. Providing an explicit structure for discussion can increase participation because people understand the terms of engagement, resulting in more opportunities for group communication and cohesion.

One of the theories behind this approach is that there never really is a free-form discussion, because some sort of structure is always present in group dynamics, whether that structure is explicit or implicit. In an un-facilitated and open-ended meeting like traditional Supreme Court oral arguments, there’s no explicit structure guiding discussion, and so implicit structures take hold. Often these implicit structures favor those among the group who feel more extraverted and those who can think by talking, while leaving behind introverts or others who need more time to consider a point before sharing their thoughts.

For participation to work, the explicit structure for discussion—the ground rules for the meeting—must be clear and consistently applied. One critical take on the facilitated oral argument pointed out that Chief Justice Roberts, who was acting as the facilitator, “took much more control of it than he was entitled too,” and that the Chief was “somewhat variable and even at times arbitrary in how he allowed either counsel or one of the other justices to continue.” Indeed, Chief Justice Roberts is a legal scholar; he is not a meeting facilitator! This underscores the importance of a trained, experienced facilitator who can lead participatory sessions. If the process is seen as arbitrary or unfair, it may be met with a distrust that ultimately undermines the potential of participation.

Some might say that these rules and structures are restrictive because they place constraints on the discussants. But—if the process is clearly laid out and applied justly—participatory methods such as those introduced by the Supreme Court can actually produce more group communication (as the analysis above has shown), leading to greater insights, better decisions, and more engaged participants. This is why they are sometimes referred to as “liberating structures.” When grounded in the principles of power sharing and co-creation, participatory methods can be empowering by giving people a voice that matters, thus transforming more people into decision-makers. This is the principle behind participatory design—that people should have a say in the decisions that affect their life.

Summary

Recent changes to Supreme Court oral argument show that participatory methods can lead to more engaged and inclusive discussions. With the introduction of structured discussion, not only has Justice Thomas gone from speaking rarely to speaking regularly, but nearly all participants were shown to have increased participation in oral argument. The facilitated approach to the May 2020 oral arguments can be viewed as a striking model for the power of participation.

In libraries, we can challenge traditional hierarchies and increase staff engagement and empowerment by applying participatory approaches in meetings, workshops, and other places where decisions get made.