Supreme Court justices are talking more

By Robert Barnes
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.

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."

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.

"The chief justice has a sense of what it's like to be on this side of the bench," said Frederick, who has been a frequent presence at the lectern this term. "He totally understands an advocate's perspective."

But oral arguments are about the justices. Ginsburg most frequently asks the first question. Justice Stephen G. Breyer seems to think out loud, in long and sometimes looping hypotheticals.

Some trace the increased questioning to Justice Antonin Scalia's arrival in 1986, and he remains the most pointed questioner.

Other than Thomas, Justice Anthony M. Kennedy is often the quietest, although many arguments are directed at securing his crucial vote.

"I think, like a married couple, they settle into a routine," Blatt said. "It's just a matter of time."

Staff researchers Madonna Lebling, Jennifer Jenkins and Lucy Shackelford contributed to this report.

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