At six hours over three days, the duration of the arguments over the Affordable Care Act will be historic – but not unprecedented, even in the modern era.
In the Court’s early days, no limits were set on how long arguments could go. Gibbons v. Ogden, the 1824 Commerce Clause case that is in some ways the prequel to this week’s confrontation, was argued for 20 hours over five days.
The Court began cutting back on argument time in 1848, according to University of Virginia political scientist David O’Brien in his book on the Court, Storm Center. The limit was set at an eye-popping eight hours – two hours for two lawyers on each side. That was cut in half in 1871, to two hours on each side. In 1911, it went to 90 minutes per side, and then to an hour each in 1925. Soon after Warren Burger became chief justice in 1969, he trimmed argument time to a half-hour for each side, where it stands today.
Even as the time has been cut back, the Court has reserved the option of increasing the length of arguments at the request of parties or on its own motion.
The Oyez Project at Chicago-Kent College of Law, where the audio of Supreme Court oral arguments is available online, recently posted a chart placing the Affordable Care Act arguments in context as the ninth longest since 1955, behind other famous and not-so-famous cases in which the Court allotted extra time.
The longest oral argument since the mid-1950s came in Arizona v. California, an original jurisdiction case decided in 1963. A complex dispute over the Colorado River that dated back decades, the case also counted Nevada, New Mexico, Utah and the United States as parties. A special master held a trial that produced 25,000 pages of transcripts, but still the Court heard the cases for 16 hours over four days.
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