A Shift in Oral Arguments: An Update

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I recently wrote a post where I looked at Justice Scalia’s final ten oral arguments and compared them to the first ten oral arguments after his death.  There have been several oral arguments since then and with the data from those arguments I am able to expand the timeframe of that analysis.  In this post I examine a total of 32 oral arguments or sixteen before and sixteen after Justice Scalia’s passing.  I had the option of extending this to seventeen oral arguments on both sides but I intentionally kept it to sixteen because I excluded the oral argument in Puerto Rico v. Cal. Franklin Tax-Free Trust.  This oral argument was highly irregular because of the lack of Justice participation and engagement generally, (you can read more about this in a prior post) which would have skewed the results away from the true balance of participation.

In this analysis I add another metric – the average number of sentences a Justice uses in a turn (“turn” referring to a segment of uninterrupted speech).  One of the most significant points to underscore is that the findings from the previous post hold up when the analysis is extended out six oral arguments further on both the Scalia and post-Scalia timeframes.  Justice Sotomayor still has the most talking turns for the post-Scalia segment with 334.  Chief Justice Roberts took the second most with 308.  In the set of sixteen arguments that include Scalia, Sotomayor took the third most turns with 291 followed closely by Justice Breyer with 285.

In the post-Scalia set of oral arguments, the remaining Justices do a good job of filling the void left by Justice Scalia.  Justice Scalia used a total of 7,073 words in his final sixteen oral arguments.  The eight Justices on the post-Scalia bench net +6,337 words more than they used in the previous sixteen oral arguments falling just short of Justice Scalia’s total word count for the previous sixteen.  The only Justices to use fewer words were Justice Breyer (who still used the most words of any Justice with 12,915) and Justice Kennedy whose word count dropped 1,120 words from 5,567 to 4,447.

Justice Alito was still the Justice with by far the most balanced statement to question ratio in the post-Scalia arguments although in the extended analysis his ratio is closer to evenly weighted with 46% questions and 54% statements.  After Justice Alito comes Justice Kennedy with a 60/40 balance of statements to questions and then Justice Sotomayor with a 67/33 balance.  Justice Alito’s ratio in the sixteen oral arguments that include Justice Scalia is 65% statements and 35% questions.

While these results hold up from the previous post, the added metric provides a nuance that I did not previously uncover.  When examining sentences per talking turn as the figures below show, the Justices are all fairly consistent with the exception of Justice Kagan.

WScalia

WOScalia

Justice Kagan increases from 2.65 sentences per turn (which is second to Justice Scalia’s 3.40 sentences per turn) to 3.67 sentences per turn which ranks first among the Justices in the post-Scalia set.  Justice Breyer’s average for sentences per turn in this set of arguments is 3.42 and Justice Roberts’ is 2.24.  Since Justice Kagan had the second highest word count to Justice Breyer’s in both sets of arguments, this change presents an added depth and complexity to her statements and questions as well as her taking time away from the other Justices’ (and attorneys’) questions.

At least in terms of raw numbers, the Justices seem to do a fairly good job of filling the gap in oral arguments left by Justice Scalia.  Some intriguing questions that remain to be answered are what type of balance will be struck when a ninth Justice is added to the Court, whether Justice Thomas will engage in oral arguments any more frequently than he did in the past, and whether we are witnessing a shift to oral arguments dominated by the more liberal Justices; a possible sign of a shift away from the conservatively dominated Court (as many have so deemed it) of the past several decades.

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Follow me on Twitter: @AdamSFeldman

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