A New Way of Defining Oral Argument Terrain

Oral arguments are one of the more empirically studied areas of Supreme Court decision making.  This may make intuitive sense. Oral arguments are one of the few moments where the justices’ decision making process transpires before members of the public.  Audio of these arguments is recorded and accessible to anyone with an internet connection.  Video…well that’s another story.  Still, there is more documentation of oral arguments than other aspects of the decision-making process. For instance, conferences where the justices vote are held privately.  The only semi-public record of this comes from the justices’ personal papers if and when they are released.  Justice Blackmun’s papers are the most recent and are available online.

Oral arguments can vary drastically in their importance.  Some case outcomes are predictable prior to oral arguments just based on the justices’ prior votes and the question(s) on cert.  Other cases’ outcomes become clear from oral arguments and especially from the justices’ lines of questioning.  One way to gauge justices’ engagement in a case (aside from Justice Thomas) is through his or her participation at oral argument. While the utility of oral argument may differ for each of the justices, it is an opportunity for all to gain information about cases and form voting coalitions.

The interaction between justices at oral argument is also suggestive of the justices’ dispositions.  Justices occasionally talk over each other with varying amounts of intentionality.  Although the justices may have multiple goals for oral arguments, due to the arguments time limited nature, all justices are bounded in their abilities to reach these goals.

Oftentimes the direction of questioning and conversation dictates the dialogue in oral arguments.  Justices gain momentum in their discussions and keep the floor for prolonged periods of time.  For this reason it is highly beneficial for justices who are engaged in particular cases to get the first word in after attorneys’ introductory remarks.  The justices interject in the midst of attorneys’ first statements in almost every instance.  This ability to start the course of questioning and direct the conversation imbues the first justice that speaks with a good deal of power.

Counting Justices

Which justices direct the flow of oral arguments? The results may be surprising.  The first figure looks at the first justice speaker in each argument segment this term combined (petitioner, respondent, rebuttal, and amicus if applicable).

allcount

Although not one of the most talkative justices, Justice Ginsburg was the first justice to speak more often than any other justice this term followed by Justice Sotomayor.  This reflects an often-overlooked aspect of how Justice Ginsburg defines the contours of oral argument discussion.  By contrast, Justice Breyer who is often the most loquacious justice at oral argument only began the discussions in nine instances this term.

Petitioners win the majority of cases before the Supreme Court. The theory behind this is that due to the limited number of cases they hear, the justices are more likely to take cases if they have some intention of overturning lower court decisions on the merits. They are correspondingly less likely to take cases to affirm such decisions.  This creates a potential disparity between the justices’ interest in directing conversation in the various segments of oral arguments.  When looking at the first justice to speak during petitioners’ oral arguments this term, there is an even starker differential between justice Ginsburg and the next most active justice.

petcount

Next, Chief Justice Roberts was the most active justice this term in beginning the conversation during respondents’ oral arguments.

respcount

Although not all rebuttal are interrupted, Justice Sotomayor was the justice that began conversation during the rebuttal the most often this term.

rebutcount

Justice Gorsuch’s only two opportunities speaking first among the justices were in rebuttals in Weaver and Davila.

Amici (predominately on behalf of the Solicitor General’s Office) participate in many oral arguments each term.  This is often to convey the government’s position on issues and to help clarify particular points for the justices.  The strategic incentive to begin these conversations may differ from the other segments of oral arguments.  Here are the justices that first stepped into amici’s oral arguments most frequently this term.

amiccount

Justice Sotomayor and Chief Justice Roberts were the most frequent to begin the discussions with amici this term.  Contrastingly, Justice Ginsburg was less likely to be the first justice to speak up during amici’s turns.

Attorneys’ Words

Beyond the first justice to speak, a related element is how much information the justices allow attorneys to convey before interposing their own remarks.  This can be broken down by specific argument segments as well.  The next figure focuses on petitioners’ initial statement word counts per justice this term when the given justice is the first to speak after the attorney.

WordsPet_All

For the justices that spoke first during a petitioner’s argument this term, Justice Kagan allowed the most words while Justice Sotomayor allowed by far the fewest words.  Justice Sotomayor is somewhat idiosyncratic in this respect as she typically jumps in early when she is first to speak after the attorney.  This is even more pronounced in rebuttals where in Bristol Myers and Water Splash, Justice Sotomayor allowed attorneys five word introductions (which were “Thank you Mr. Chief Justice” in both instances). Once in a rebuttal (in Turner), Justice Sotomayor began speaking before the attorney altogether.

One area of oral argument that has recently received heightened scrutiny in the press is gender dynamics on the Supreme Court– both regarding attorneys and justices.  One could take this into account when looking at the justices to speak first during oral argument as well.  To do this the following figures show the number of words attorneys spoke before a given justice began the justices’ intervention in an oral argument by segment and based on the gender of the attorney.  First for petitioners this term, which is a decomposition of the data from the previous figure:

wordspetgender

Potentially due to the low ratio of female petitioning attorneys this term (just under 19%), two justices, Justices Kagan and Roberts, only interjected over male attorneys remarks this term.  Of the three justices that interjected over female attorneys remarks this term Justices Kennedy and Sotomayor allowed near equal numbers of words for both male and female attorneys.  Justice Ginsburg entered arguments about forty words earlier for female attorneys than she did for male attorneys.

The gender disparity is more pronounced for respondents’ arguments.

wordsresp.png

Of the justices that started the discussions after both male and female respondent attorneys this term, Chief Justice Roberts allowed male attorneys many more words while Justices Ginsburg, Kagan, and Kennedy allowed female attorneys more initial words.

There are interesting disparities for the justices during amici’s arguments as well

wordsamicus

Justice Kennedy began discussions after an amicus attorney in multiple instances but only after the male attorneys averaged over 600 words.  Justice Kagan allowed male amicus attorneys more initial words on average while Chief Justice Roberts and Justices Ginsburg and Sotomayor allowed female attorneys more words.

A final lingering question is which attorneys spoke the most and least at the beginnings of their argument segments this term?  For petitioners, Kevin Russell had the most words in Henson v. Santander with 706. For respondents, Constantine Trela spoke the most words initially in Impressions Prods. v. Lexmark with 623.  The amicus attorney with the most initial words this term was also in the Lexmark case – Malcolm Stewart on behalf of the United States with 908 words.

On the other end of the spectrum, the petitioning attorney with the fewest initial words was John Groen in Murr v. Wisconsin with forty-five.  The attorney with the fewest initial words for both petitioners’ and respondents’ was James Feldman in Advocate Health. Here, Justice Sotomayor jumped into the conversation after the attorney spoke two words: “Mr. Chief.”  Lastly, Zachary Tripp had the fewest words for an amicus in Coventry Health with forty-seven.

There are many unexplored dynamics at play here and in other aspects of oral arguments.  The findings above hopefully provide a small step forward.


On Twitter: @AdamSFeldman

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