Wednesday, I looked at some research suggesting that the Obama administration — as the party that faced fewer questions in the individual mandate oral arguments — had the better shot at winning the case. Over at the Monkey Cage, Michael Evans of Georgia State University breaks down the oral arguments by each justices’ questions. And, digging deeper into the numbers, things start looking less rosy for the White House.
First, here are Evans’numbers on how many words each lawyer faced, by justice (Justice Clarence Thomas, the only justice not to ask any questions, is not included):
Overall, the White House did face fewer words in oral arguments. But when it comes down to the swing justices like John Roberts and Anthony Kennedy, Obama’s solicitor general got the lion’s share of questions. As Evans explains, that’s not usually a good sign, as the party that faces more questions tends to be more likely to lose:
For those not familiar with the research on this (see below), it has shown that Justices tend to direct more questions and words at the side they eventually vote against. The theory is that Justices generally do not play “devil’s advocate” — asking questions to help the side they support — but, rather, attempt to expose what they see as the weaknesses of the other side’s arguments.
When we look at individual justices, which seems more appropriate here, the Court appears sharply polarized along familiar ideological lines and Kennedy uttered just over twice as many words to Verrilli as he did to Clement/Carvin, which is a greater discrepancy than is typical for him.
And note, finally, the whopping 39 percentage point difference between Kennedy and the closest liberal justice (Ginsburg) vs. the 13 percentage point difference between Kennedy and the closest conservative (Alito).