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(image via Los Angeles Times)

It has been over a month since Justice Scalia, one of the most engaged Justices in oral arguments since he was confirmed to the Court in 1986, passed away on February 13, 2016.  For all of the commentary surrounding his passing and on the questions surrounding the process of confirming the next Supreme Court Justice, not much has been made about how this change in the composition of the Court has affected the interaction among Justices.  To help fill this gap, this post examines data from Justice Scalia’s final ten oral arguments and compares this with data from the first ten oral arguments subsequent to Justice Scalia’s death.

Justice Scalia was well known for his incisive questioning from the Bench and for his ability to dominate the oral proceedings.  Was Justice Scalia the most verbose Justice during his last ten oral arguments?  During those ten oral arguments Justice Scalia took the second most opportunities to talk after Chief Justice Roberts but his total word count among the Justices placed him fifth after Justices Breyer, Kagan, Roberts, and Sotomayor.  The figures below depict these two attributes of the Justices relative speaking during those ten oral arguments.

The margin of difference between the number of words Justice Breyer used over this time period and the next most talkative Justice, Justice Kagan is over 3,000.  Justice Ginsburg, on the other hand only used a little more than 1/3 of the total words used by Justice Breyer and Justice Alito used even fewer.

In the ten oral arguments after Justice Scalia passed, several aspects shifted.  One notable anomaly that garnered much attention was Justice Thomas speaking for the first time in ten years in Voisine v. United States.  Justice Thomas’ addition to oral arguments, however, only lasted the one segment of this one case.  In terms of a shift in the relative engagement of the Justices, Justice Sotomayor has become one of the most dominant voices.  This is apparent from singular examples (e.g. Franklin CA Tax-Free Trust , Zubik , and Hellerstedt) as well as from the entire sample of ten cases.  When we look at the overall numbers, Justice Sotomayor took the most talking turns during the first ten oral arguments without Justice Scalia and in this respect ranks first among the Justices.

Other visible shifts include Justices Kagan and Alito speaking more often.  When we look speech in the absolute sense based on the total number of words, Justice Breyer is still the most gregarious of the Justices.

Justice Sotomayor uses almost 1,000 more words in these ten oral arguments than she did in the previous ten, while Justices Kennedy’s word count decreases notably pushing him below Justice Ginsburg’s count.  The following figures look at the Justices relative number of statements to questions in the two sets of oral argument proceedings.

When we compare the Justices numbers of statements to questions, Justices Roberts, Sotomayor, Breyer and Kagan were weighted towards statements before Justice Scalia passed (Justices Breyer and Kagan almost doubled the number of questions they asked with the number of statements they made). After Justice Scalia passed these Justices remain statement heavy relative to their questioning.

The most dramatic shift, however, is in the Justice Alito’s statement to question ratio.  Before Justice Scalia passed away only Justices Kennedy and Alito asked more questions than the number of statements they made.  In the ten arguments after, Justice Alito almost triples the number of statements he made by the number of questions he asked.  This gives Justice Alito’s oral argument engagement a unique quality among the Justices in this small sample of cases.

One other way to compare the Justices modes of speech during these two sets of oral arguments that is intriguing, albeit more experimental in nature, is by the level of formality in their speech.  Formality scores are based on the frequency of the parts-of-speech the speakers’ use. Although this method is empirically tested, it works more accurately with larger word samples.  This make Justice Thomas’ formality score fairly meaningless.  As is evident from the data, typically the more a Justice speaks, the lower the Justice’s formality score.  On the other hand the formality scores are likely picking up on something distinct to the actors’ speech as almost all of the attorneys’ formality scores during oral argument are well above the Justices’.  To this end I provide the scores of the two attorneys with the most formal tone in both sets of arguments.  In the argument set before Justice Scalia passed, Ruth Botstein, Assistant Attorney General for Alaska, had the most formal tone from her oral argument as amicus curiae in Sturgeon v. Frost followed by John Duggan who represented ConAgra Foods in Americold Realty Trust v. ConAgra Foods.

In the first set of ten oral arguments Justice Alito uses the most formal tone and Justice Scalia uses the least formal.  As is evident, the Justices are much more tightly clumped together in their formality than they are with the attorneys with the highest formality scores. In the second set of oral arguments the attorneys with the top formal scores were Shay Dvoretsky in Husky International Electronics v. Ritz followed by Ilana Eisenstein in Voisine v. United States.

Looking at the Justices (and still putting aside Justice Thomas), Justice Alito maintained the top formality score but this time was followed by Justice Kennedy rather than by Justice Kagan.  Justice Breyer dropped to the lowest formality score.  In both sets of arguments Justice Roberts had the second lowest formality score of the Justices.  As with the first set of ten oral arguments there is a clear distinction between the formality scores of the top two attorneys and of the Justices (notwithstanding Justice Thomas).  Whether these trends will hold is anyone’s guess.  One thing is almost for certain though: after the next Justice is confirmed, whether it be Judge Garland or otherwise, we are likely to see another shakeup in the Justices’ levels and types of engagement during oral arguments.

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