What was said over the course of the 90 minute the oral arguments today in Zubik? Quite a bit. Commentators seem to think the Justices may split their votes four to four (e.g. Adam Liptak from the New York Times) with the Justices predominately to the right: Kennedy, Alito, Thomas, and Roberts voting that the Mandate substantially burdens religious exercise and violates the RFRA while the Justices on the left: Ginsburg, Breyer, Sotomayor, and Kagan voting that the Mandate does not. This post is agnostic as to the potential outcome of the case to the extent that I attempt to relay the facts from the argument transcripts. This post examines the questions and statements from both parties and all Justices from a quantitative perspective. I split up the discussion by the petitioner’s and then the by respondent’s arguments.
Who spoke the most during petitioner’s arguments? This can be arranged by overall words or by total sentences. The table below first goes through the Justices and then the two representatives for the petitioners. Both are arranged by the number of sentences they used from most to least. I also categorized the turns of talk as statements and questions when this was clear.
While Justice Sotomayor used the most sentences, Justices Kagan and Breyer actually used more total words. For the petitioners, Clement spoke more than Francisco both in terms of number of sentences and number of words.
What did they discuss? I created a frequency count with each speaker’s most used terminology. I eliminated stopwords such as “and,” “the,” “but,” etc. The frequency list is below.
As is evident, many of the Justices looked at the bodies and organizations affected by the Mandate and the implications of the Court’s decision, ranging from governmental to religious.
The next figure looks at the amount each speaker spoke per turn. It is organized chronologically from left to right where the left hand is the beginning of the argument and the right is the end. Notice the gap between the two times Clement is arguing for the petitioners. The second time for Clement is during petitioner’s rebuttal.
The figure below also plots the talking turns of the individual speakers but does so with bar graphs. It also moves from beginning to end from left to right. This figure makes clear that the longest individual turn of talk was taken by Justice Breyer while Clement and Francisco arguing for the petitioners had the second and third longest individual turns of talk.
The final figure looks at the Justices’ questioning patterns.
Without delving too deeply into the implications of the question types, we see that as the data above showed, Justice Sotomayor asked the most questions. Her questions were typically “were,” “will,” and “how” based. Justice Ginsburg had a propensity towards “who” and “can” questions, and Justice Kagan’s questions focused on “may” and “had.” As is expected the attorneys for the petitioners framed very few of their sentences in terms of questions. Justices Alito and Kennedy were also particularly light in their questions during petitioners’ arguments (Justice Roberts asked no questions and Justice Thomas was silent per his norm). These questions give a sense of the type of type of issues the Justices attempted to probe during this argument. They range from questions concerning policy implications to hypothetical implications of the Court’s decision one way or the other.
Typically we observe the Justices focusing their energy on one party or the other. This argument was no different. Justices Roberts and Alito dominated the discussion with Solicitor General Verrilli and Justice Kagan did not speak during this portion of the arguments at all (just as Chief Justice Roberts did not during the petitioner’s arguments). As with the petitioner’s arguments, the first table arranges the justices from who spoke the most to who spoke the least.
Justice Alito clearly spoke the most with 26 sentences and 1,091 words but Justice Roberts was not far behind with 25 sentences and 957 words. Justice Alito favored questions to statements by a margin of 15 to 7 while Justice Roberts favored statements over questions 13 to 11. Solicitor General Verrilli spoke more than any other individual during either of the side’s arguments with 73 sentences, 31 statements, and 4,626 words. This may not be surprising based on the importance of the Solicitor General’s contribution of the government’s rationale for wanting to uphold the Mandate.
The types of words and word frequencies used by the Justices (and the S.G.) during the respondent’s argument appear in the table below.
As is evident from this table the focus here is more on the question of coverage as well as on the burdens of the Mandate. The following figure look at the talking turns of the Justices and the Solicitor General.
This figure supports the data above that Solicitor General Verrilli spoke the most and almost throughout the argument while Justices Roberts and Alito spoke the most from the Justices. Justice Kennedy on the other hand only makes a few minor contributions during respondent’s argument.
Looking at the talking turns we see the same results further supported. The Solicitor General has many long turns of talk. Justice Alito has the only talking turn that comes close to the Solicitor General’s talking turn lengths of over 200 words. The rest of the Justices fall well below these two although the Chief Justice and Justice Sotomayor both have one lengthy talking turn apiece.
As for the questions, Justice Alito asks the most with Chief Justice Roberts close behind. Alito’s questions are predominately “why” based. Justice Roberts questions, however, are “who,” “which,” and “what” based. The rest of the types of questions the Justices asked are also presented in this table.
The arguments in Zubik were lengthy and the Justices (aside from Thomas) participated heavily although predominately during one side’s argument or the other’s. The Solicitor General had much to add although this does not necessarily indicate that the Justices agree with the government’s position. These statistics can be helpful in further analyzing the arguments, although as with any analysis of oral arguments in high-profile cases, the telling result will come with the Justices’ (hopefully) final resolution of the case this June.
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Interesting analytical methodology. I look forward to comparing the Court’s opinion with this piece to see if any light has been shed. A sample size of one is small indeed, but we shall see.
A note in passing: I suspect it will be a matter of convenience for public prognosticators to predict non-decisive decisions owing to Justice Scalia’s death. One can observe that it is some neat trick to influence the Court from beyond the grave, but in truth, his absence creates a convenience that permits little embarrassment, in that there cannot be as grave an erroneous outcome prediction with “they won’t decide” as there is in predicting an entirely unexpected result. This is a Court from which unexpected results are not unexpected, so we shall see.
Massive efforts seem to have been expended on these cases. As alternative solutions to the compliance complicity conundrum have been proffered, it might be silly to assume that contraception is the central issue.
There’s always the convenience factor with cert that allows the justices wide latitude in case selection. This only augments it, especially at a time when the Justices’ polarized views are in the spotlight. I agree that this Court often has a wildcard to play (especially Roberts who seems the most strategic of the Justices). Whether or not contraception is a central issue I assume the Justices are conscious of the media attention and while that may not factor into their decisionmaking, I’m sure it weighs on them at some level.