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Supreme Court justices are talking more

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Washington Post Staff Writer
Wednesday, March 2, 2011; 7:51 PM

The Supreme Court is talking more and listening less, with new arrivals Sonia Sotomayor and Elena Kagan proving to be aggressive additions to what was already an assertive court.

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Oral arguments at the high court are a fast-paced hour of queries and hypotheticals, commentaries and critiques - and interruptions. Advocates trying to answer the barrage of questions quickly learn a truism of the court: No question is as important to a justice as the one he or she is about to ask.

"They're way more active than they've ever been," said Lisa S. Blatt, who has argued before the court as a government lawyer and now a private practitioner. "They ask a lot of questions."

And if there is a faster pace to this term, she and others agree, the reason is as simple as the court's new composition.

"As active as Justice Souter was, Justice Sotomayor is more active," said Blatt, referring to David Souter, whom Sotomayor replaced. "And as active as Justice [John Paul] Stevens was, Justice Kagan is more active than that."

Justice Clarence Thomas was recently in the news as the fifth anniversary passed since he had asked a single question during arguments. His colleagues have more than picked up the slack.

That gap between Thomas and others on the court reflects a fundamental difference of opinion about the purpose of arguments.

"I think it's an opportunity for the advocate, the lawyers, to fill in the blanks, to make their case," Thomas said in a 2009 interview with C-SPAN for a series about about life on the court. "I think you should allow people to complete their answers and their thought, and to continue their conversation. I find that coherence that you get from a conversation far more helpful than the rapid-fire questions."

His newest colleague, Kagan, speaking on the same program soon after she joined the court last year, took the opposite approach. Lawyers have their say in the briefs they file with the court, she said, and oral arguments are for the justices.

"The argument is for us to say, 'Well, yes, we've read your brief, we know what you think of the case, but here are the questions that that inspired in us,' " Kagan said, noting that the justices do not discuss a case beforehand. "So oral argument provides the first chance for you to see what your colleagues might think about a case, what's worrying them about a case, what interests them about a case."

The one-hour oral arguments are both high ritual and free-wheeling. Chief Justice John G. Roberts Jr. is more tolerant of arguments that go slightly over the time limit than his mentor and predecessor, William H. Rehnquist. Lawyers recall that Rehnquist was famous for cutting off lawyers not just in midsentence but also in midsyllable.

There aren't many rules for the justices. In an introduction to a book about appellate advocacy written by Washington lawyer David C. Frederick, Justice Ruth Bader Ginsburg wrote that, at its best, "oral argument is a conversation, a discussion between knowledgeable attorneys and jurists who have done their homework, a 'hot bench' as appellate advocates say."


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