Oral Arguments OT 2015: A Look Back

On Wednesday April 29th the Supreme Court Justices heard their final oral argument of the Term with McDonnell v. United States.  The Justices heard a total of 69 arguments from October 2015 through April 2016 (not accounting separately for consolidated dockets; links to all of the transcripts, audio, and information about all of the cases can be found here).  Nine Justices were available for the first 38 arguments, and after the death of Justice Scalia, eight justices (except in instances of Justice recusals) heard arguments in the remaining 31 cases.   In addition, 5,711 questions were asked during oral arguments across the Term.

In this post I look at aggregate measures for the Term’s oral arguments.  Focusing on the cases, there were nine arguments scheduled on isolated days and 60 heard on 30 days with two arguments each.  Of the ten longest arguments of the Term (in terms of total words spoken), five were on isolated days and five were on days with two arguments.

ArgumentLength.png

The longest oral argument of the Term was Fisher v. University of Texas at Austin at 18,512 words followed by Zubik v. Burwell at 17,371 total words.  By comparison the shortest oral arguments of the year were Menominee Tribe of Wis. v. United States at 6,912 words and United States v. Bryant at 7,654 words.

There were 39 attorneys that argued more than once this Term and 78 that argued one time over the course of the Term.  Sixteen attorneys argued in three cases, three attorneys argued four cases, and two attorneys (including the Solicitor General (SG) Donald B. Verrilli, Jr.) argued six cases.  These attorneys that argued three or more cases this term include, aside from Solicitor General Verrilli:

Paul Clement with six;

David Frederick, Michael Dreeben (OSG), and Neal Kaytal with four;

those not from the Office of the Solicitor General (OSG) with three include: Carter Phillips, Christopher Landau, Scott Keller, Thomas Goldstein, and Paul M. Smith; and

those from the OSG with three include: Anthony Yang, Curtis Gannon, Edwin Kneedler, Elaine Goldenberg, Ginger Anders, Ian Gershengom, John Bash, Malcolm Stewart, Nicole Saharsky, Paul M. Smith, Roman Martinez, and Sarah Harrington.

When looking at individual arguments, Zubik v. Burwell and  FERC v. Electric Power Supply Association included combinations of some of the most experienced oral advocates of the Term. Solicitor General Verrilli (six oral arguments), Paul Clement (six oral arguments), and Noel Francisco (two oral arguments) all participated in Zubik while Paul Clement, SG Verrilli, and Carter Phillips (three oral arguments) participated in the FERC case.

Breaking this experience down another way, the figure below shows the ten attorneys that spoke the most this Term by the number of words they used.  The column to the right of words shows the corresponding number of sentences.

AttorneyTalk.png

Removing the OSG attorneys who had more opportunities to speak at oral arguments due to their regular participation as amici, we are left with ten attorneys that include:

Non-OSGTalk

Three attorneys in this list were not covered by those that had at least three appearances this Term.  They include Michael Carvin, Gregory Garre, and Peter Stris.

Finally a look at the Justices.  In terms of their numbers of utterances (talking turns between interruptions by another Justice or attorney) the final counts looks like:

JTalkingTurns.png

As Chief Justice Roberts speaks before and after each attorney and at the beginning and end of every oral argument, he has more institutionalized talking turns than any other Justices.  Justices Sotomayor, Breyer, and Kagan took the most turns after Justice Roberts.  This gets back to a point I made in previous posts of the more liberal Justices’ tendencies to dominate the oral proceedings this Term.

Looking at the other statistics for the Justices, the more liberal Justices appear equally dominant:

JusticeTalkStats.png

Justice Breyer who typically speaks more than any other Justice (see for example) did not disappoint this Term.  He spoke 16,938 more words than the next most talkative Justice, Justice Kagan, or almost as many words as Justice Kennedy spoke across the entire Term.  With 43,043 words, Justice Kagan spoke 6,435 more words than Chief Justice Roberts for the Term.  Justice Sotomayor also spoke 9,476 more words than Justice Alito.

Looking at the balance of statements to questions (and excluding Justice Thomas who spoke too little to draw any meaningful inferences), the Justices tended towards statements with the exception of Justice Alito.  This is also something I discuss in greater depth in an earlier post, but it is interesting to see that this balance continued across the breadth of the entire Term.  Justice Sotomayor asked the most questions in absolute terms while Justice Roberts made the most statements and had the most total sentences.

Justice Scalia’s death changed the trajectory of oral arguments and likely shifted the speaking patterns for the remainder of Justices.  There is already speculation that Scalia’s death has had far reaching effects on opinion outcomes and that there will be more fallout to come.

Oral arguments this Term were dominated by experienced practitioners who tended to have one or more repeat performances.  I’m not sure there could be much more convincing evidence than this of the dominance of the modern Supreme Court Bar (here is an article on this phenomenon by Chief Justice Roberts written prior to his appointment to the Supreme Court).


On Twitter: @AdamSFeldman

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