Speaking at the conference of the U.S. Court of Appeals for the 4th Circuit on Saturday, Chief Justice John Roberts Jr. said briefs before the high court are running too long, while the justices themselves are asking too many questions at oral argument. Roberts made the remarks during a conversation with Judge J. Harvie Wilkinson III at the Greenbrier at White Sulphur Springs, West Virginia, remarks that are transcribed here.
Wilkinson asked Roberts how he would change Supreme Court practice. After joking that the chief justice should be given two votes, Roberts talked about briefs filed by parties that run 50 pages or more. The word limits were set, he said, when it was not common for allies of the parties to file as many as 40 amicus briefs. But with amicus filings growing, Roberts said there's no reason why a party's brief could not shed some of the subisidary points that can be handled by amicus groups.
"There's no reason that a party's brief couldn't be even more effective at 35 pages, certainly at 40 pages," Roberts said. "It would force the lawyers to do a better job of hitting the main points that they have to argue." Roberts readily acknowledged that as a former practitioner who wrote lengthy briefs, "there will be some sense of hyporcisy here."
On the subject of oral arguments, Roberts said, "I think we're getting carried away" with questioning. "It is a little too much domination by the bench." There too, he said, "I'm as guilty as anyone." He said justices talk about the problem from time to time. "It would be good if we were a little more restrained." Roberts even suggested giving justices timers as in speed chess, so they can see how much time they are eating up with their questions. Roberts did not mention the possibility of lengthening oral argument time beyond the current half-hour for each side, a perennial suggestion over the years.
Wilkinson asked Roberts how he handles all the various duties of chief justice, including being chancellor of the Smithsonian Institution, as well as being the father of two young children. Roberts said he'd be getting some down time as of Tuesday, with a lot less to do during the summer recess. "Our work really ramps up to the end of the term, and then it just drops off. I mean, you come in there the day after the term is over and just kind of twiddle your thumbs." Roberts said he has able help from administrators and from the Judicial Conference in his other duties. As for the Smithsonian, Roberts called that role "an interesting distraction."
An audience member asked Roberts what guidance school administrators should draw from the 2007 "Bong Hits for Jesus case" (Morse v. Frederick) which gave school officials wide discretion in restricting student activities, in contrast to last week's ruling in Safford Unified School District v. Redding which seemed to limit school officials' discretion in searching students. "If you're going to get all your guidance on issues of that type from the Supreme Court, you're going to have a lot of difficulties," Roberts said. "You can't expect to get a whole list of regulations from the Supreme Court. That would be bad, and we wouldn't do a good job at it." School boards set policy, and in other areas the Court handles, Roberts said administrative agencies have the task of giving specific guidance.