The Justices have languished for months with the uncertainty of who will fill the empty seat on the Court. This uncertainty will by no means end soon, but the impending election and the election itself may have had a cathartic effect on the Justices. There is now greater likelihood that the empty seat will be filled in the not so far future. That may be comforting to most if not all of the Justices, as even the liberal Justices expressed much concern over the prolonged vacancy.
If the outcome of the election had any major effect on any one of the Justices, it is most likely on the Chief – Justice John Roberts. Roberts who seemed to fight so hard to prevent equally divided votes, so much so that he may have pushed to keep contentious cases off the Court’s docket and to keep the most divisive granted cases until the end of the Term in hopes of securing a ninth vote by that time. Now Chief Justice Roberts can presumably breathe a sigh of relief, not only with the likelihood of a confirmed Justice under the new unified Republican government, but also with the likelihood that the forthcoming Justice will not tilt more liberally than it has in the past.
There are subtle signs from the past few days providing support for the view that the Justices and particularly the Chief Justice feel some relief. Assuming that the Justices thought either Clinton would win (thus relieving the liberal Justices’ tension) or that with whomever won the election, the likelihood that a new Justice would be confirmed would dramatically increase, one might surmise that the Justices would be more lighthearted around election time than they had been in prior days and weeks.
A look at oral argument transcripts provides some evidence to support this contention. Looking at the amount of laughter in the Court’s transcripts, there is a steep rise this week as each of the arguments alone, aside from Bank of America Corp. v. Miami, saw more laughter than in all the arguments prior to this week combined (there were only three instances of laughter in the prior arguments).
The trend line also confirms this upward trajectory and although the sample is small, the cluster around the election highlights this possibility. Added to this, the two cases with the most laughter dealt with hardly funny topics – in Lightfoot the Justices examine jurisdictional requirements in mortgage cases, while in Morales-Santana they look at immigration requirements for certain parents. Surely not inherently comical topics.
To the point about Chief Justice Roberts in particular, we only have the Morales-Santana argument today to see if the election results resonated with his behavior. One indicator that it did though comes from a look at his sentiment or polarity in his speech during this argument.
A cursory look shows that out of all of the Justices, Chief Justice Roberts had the most positive sentiment of the Justices in the argument this morning. Sentiment analyses, especially with transcripts like these are highly volatile and so it is difficult to infer much from them. Still, looking at Chief Justice Roberts position relative to the other Justices (Justices Sotomayor, Kagan, and Ginsburg all fall towards the bottom and are in the negative sentiment zone) shows a potential indicator that the Chief was uplifted by the election results.
Much will play out in the upcoming weeks and months that will set the tone for the future of the Court, but the immediate data do show the possibility that the politics surrounding the election and the election results themselves already had an impact on the Court.
On Twitter: @AdamSFeldman