In between reading gems, such as first-year law school textbooks, I’ve been reading David C. Frederick’s book, Supreme Court And Appellate Advocacy. The book starts with a historical narrative of the Supreme Court. Surprisingly, the first decades of Supreme Court practice were geared around oral argument, and not written briefs. In fact, there were no written briefs!
And oral argument was not the one hour affairs that they are today. In Gibbons v. Ogden, one of the first Court cases to discuss the Commerce Clause, the attorneys argued for six days. That’s right, six DAYS. It makes the five and a half hours of argument on the Affordable Care Act seem downright terse.
My guess is that with six days of argument even Justice Thomas would have to ask at least one question.