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Supreme Court justices are talking more

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Feb. 1 (Bloomberg) -- Texas Attorney General Greg Abbott talks about yesterday's ruling by a Florida judge that last year's health-care overhaul overstepped limits on congressional power by compelling people to buy insurance. Florida sued on behalf of 13 states on March 23, the day Obama signed the overhaul into law. Twenty-five states, including Texas, had joined Florida's suit by yesterday's decision. Virginia sued separately on March 23 and Oklahoma filed its own suit on Jan. 21. The Obama administration said it will appeal the Florida ruling. Abbott talks with Mark Crumpton on Bloomberg Television's "Bottom Line." (Source: Bloomberg)
Justices' participation in oral arguments, as measured by lines in transcripts:

Lawyers say they can't rely on saying more than two or three sentences after the traditional opening - "Mr. Chief Justice and may it please the court" - before bracing for a question. And sometimes they don't even get that, as Roy W. McLeese, a deputy solicitor general, learned this term as he began his presentation.

"A district court judge in . . . " McLeese started.

"Counsel, could I just ask one simple question?" Sotomayor interjected.

Veteran Supreme Court advocate Carter G. Phillips said he does not expect to present his argument in a comprehensive monologue. "I have to make my points in the context of answering questions," Phillips said in an e-mail exchange. He said that Justice Samuel A. Alito Jr. said the court averaged more than 70 questions per half-hour last term. And, Phillips said, "it would be hard to ask too many more."

If anything, the court is even more talkative this term. The O'Melveny & Myers law firm looked at the pattern of questioning in the high court last term and counted how many lines of argument transcript were a justice's comments or questions.

The average argument total was 486 lines. A similar review by The Washington Post of this term's arguments showed that the number had grown to 542.

Part of that is the more active role Sotomayor plays in her second year on the court. A 17-year veteran of the judiciary before she joined the high court, Sotomayor was hardly reticent her first year. But she is more talkative this year, a blunt and detail-oriented questioner whose comments inform the reliably liberal point of view she has exhibited since joining the court.

She was particularly outspoken during arguments about a federal court's order that California must reduce its overcrowded prisons. "When are you going to avoid the needless deaths that were reported in this record?" Sotomayor asked Phillips, who was representing California in the case, which has dragged on for 20 years. "When are you going to avoid or get around people sitting in their feces for days in a dazed state?"

Kagan, too, has spoken more than Stevens, the justice she replaced. Her questions are more analytical, often summing up the issue in the manner of the law professor she was.

She at times seems to be offering a compromise that the court might agree upon. In the prison-crowding case, she suggested that California not be able to escape the judicial order but get more time to correct the overcrowding.

This term, Roberts has become more of a traffic cop. He often sets up a queue when justices speak at the same time and tries to shut down justices to give the advocate time to answer or rebut. Sotomayor seems to be a frequent target.

Of the four justices who regularly argued before the high court - Ginsburg, Alito and Kagan are the others - Roberts has the most experience.


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