The Supreme Court is now at full force with nine justices sitting in on oral arguments. Justice Barrett had her first day of arguments yesterday participating in both Salinas v. Railroad Retirement Bd. and United States Fish and Wildlife Serv. v. Sierra Club, Inc.
Barrett’s first day of oral arguments was different from that of any of her counterparts as arguments were remote and audio was live streamed. They were also different from any of the others as all Justices participated in arguments. This amount of active participation is something new for Justice Thomas who previous to remote oral arguments had remained silent for the vast majority of his career on the Court.
The Justices are also allotted equal time to speak with each attorney independent of one another, which prevents them from vying for speaking time. Where before we Court gauge aspects of the Justices dynamics from their interactions with each other during oral argument, now we can only analyze them in isolation. Since the Justices are each apportioned an equal amount of speaking time, it is more difficult to construe analytic differences in their likely votes based on their participation. Still certain nuances show conspicuous differences between the Justices.
We can usually tell differences in how the Justices may vote based on the differential in their participation during the petitioner and respondent’s arguments (example one / example two). Even with equal time to participate, the justices speak differing amounts per side during remote oral arguments and they speak different amounts from one another. These two metrics hint at the justices’ possible votes in the case and also help to tell a story about how Justice Barrett may engage in oral arguments relative to her counterparts on the Court, just as they did for others like Justices Gorsuch and Kavanaugh. In Salinas for instance, Barrett spoke more in total than Justices Kagan, Alito, Breyer, Sotomayor, and Thomas.
Only Justices Roberts, Gorsuch, and Kavanaugh spoke more than Barrett. Barrett presented the smallest differential in the amount she spoke to the petitioner and respondent’s attorney which gives few details on how she might vote in the case. The greater amount that Justices Alito and Gorsuch spoke to petitioner’s attorney, Sarah Harris, relative to respondent’s attorney Austin Raynor hints at the possibility that they may vote for the respondent in the case.
We see that Justice Barrett also spoke fourth most of the justices in Sierra Club.
In that case she spoke more than Justices Sotomayor, Kavanaugh, Roberts, Alito, and Thomas and only spoke less than Justices Breyer, Kagan, and Gorsuch. The majority of the Justices including Barrett spoke more to the respondent’s attorney Sanjay Narayan than to petitioner’s attorney Matthew Guarnieri, conveying the possibility that they might vote against the respondent on the merits. In this case the Justices were also more balanced in their overall speech where Justice Kavanaugh spoke by far the most in Salinas.
With this amount of participation in her first set of oral arguments we may expect Barrett to be quite active in oral arguments to come. We will see how this carries forward if and when the Justices revisit the idea of hearing oral arguments in person once again.