Atypical Oral Arguments In Puerto Rico v. Franklin CA Trust


On Tuesday the Court heard arguments in Puerto Rico v. Franklin Cal. Tax-Free Trust a case that examines whether Congress precluded Puerto Rico from the ability to restructure its public utility debt. Specifically the case looks at whether Chapter 9 of the Bankruptcy Code applies to Puerto Rico.  Much of the case and the arguments attempt to interpret Congress’ 1984 Amendment to the Bankruptcy Code and what this Amendment means for Puerto Rico’s debt.  At the arguments, Puerto Rico was represented by Christopher Landau of Kirkland & Ellis and Franklin Cal. Tax-Free Trust et al. was represented by Matthew McGill from Gibson Dunn.  This post parses the arguments and looks at the behavior of the individual Justices and attorney.

The first figure shows the sequence of talking, by individual Justice and attorney, through the sequence of the entire oral arguments.


The longest talking turns were from Mr. Landau during the rebuttal.  The Justices predominately had short questions and comments.  Justice Breyer had the longest instance of consistent speech, which took place during the respondent’s argument.  The table below provides the numbers supporting the figure as well as other speech attributes.


It is interesting to note that three of the Justices didn’t speak at all.  First, Justice Thomas which is par for the course. Second Justice Alito who recused himself from the case.  Third, Justice Kennedy did not add anything during these arguments.  Justice Sotomayor spoke the most for the Justices.  Mr. Landau representing Puerto Rico spoke the most overall and almost twice as much as the opposing attorney Mr. McGill.  The analyses below provide more information about the type of information the Justices were seeking when they are separated into petitioner and respondent’s argument.  First, the petitioner’s turn.


Justice Ginsburg said little as Mr. Landau dominated the discussion in an attempt to clarify Congress’ design under the Bankruptcy Code.   These talking amounts are also apparent in numerical form.


Justice Ginsburg only asked the petitioner one question while Justice Roberts asked three.  Justice Kagan only asked one question but her five statements add to her total amount of speech during petitioner’s argument.  Justice Sotomayor spoke the most although Justice Breyer had a lengthy interaction with Mr. Landau about the interpretation of the term “State” in the Bankruptcy Code and whether that term encompasses Puerto Rico. This is also evident from the frequency of the terms the Justices used when interacting with Mr. Landau (after eliminating irrelevant words).


Justices Breyer and Sotomayor used the word “state” more than any other relevant word.  Looking at these term frequencies, the Justices focused much of the discussion on the interpretation of the Code Sections and the applicability to Puerto Rico.  Next to respondent’s turn.


The Justices were a bit more vigorous in interacting with Mr. McGill.  Justice Sotomayor was most engaged at the beginning and the end of respondent’s argument while Justices Kagan and Breyer were most involved in the middle.  Justice Ginsburg had little to say here as well and Justice Roberts said almost nothing.


In table form this is apparent with Justice Sotomayor asking the most questions here as well.  The Justices questioned Mr. McGill less frequently than Mr. Landau as they had more statements relative to questions in this part of the argument.  In terms of total words Justice Breyer spoke almost as much as Justice Sotomayor but did so with many fewer sentences.  The next table focuses on the specific words the Justices used during the respondent’s turn.


The Justices were interested in the definition of “States” here as well as this was the most frequent term for Justice Sotomayor.  Justices Breyer and Kagan focused on the Chapters of the Bankruptcy Code.  Justice Kagan also brought up Mr. Landau’s position several times during Mr. McGill’s argument to seek responses to the points Mr. Landau raised.

Without Justice Scalia, with the recusal of Justice Alito, and with the silence of Justice Kennedy, the oral arguments in this case lacked the vibrance present in other instances.  Add to this the minimal interaction by Justice Ginsburg and the only somewhat greater involvement of Chief Justice Roberts and you have a non-traditional oral argument with below normal Justice involvement.  Justice Sotomayor clearly had the most to add for the Justices, but was only really supplemented by Justices Kagan and Breyer.  The attorneys were also interrupted less than is usual during their arguments and were able to get through more of their prepared agendas than is typical.  Especially in a case with such far-reaching implications, the Court was quieter than might have been expected in advance of these arguments.

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