A week ago, the Supreme Court heard oral arguments in five cases. These cases ranged from dealing with land and water disputes to sentence enhancements, from the admission of trial court evidence to state-secret privileges. Lots can be made of the words the justices and attorneys said in oral argument. What is not as obvious is that quantitative methods can provide additional context to help understand the justices’ engagement in oral argument, and how they may vote on the merits.
Mississippi v. Tennessee
The Court began with arguments in Mississippi v. Tennessee with opening remarks from the petitioner’s attorney John Coghlan. Then Justice Thomas opened the questioning by asking “Well, counsel, you seem to complain about Tennessee pumping water from Mississippi, but you admit that Tennessee does not enter across the border into Mississippi, isn’t that correct?” Justice Thomas did not let Mr. Coghlan finish answering the question before posing his next question: “Okay. So — but the case that you cite as an intrusion from — I think it’s Tarrant or Tarrant — wasn’t that a cross-border situation?” The sequence of talking during petitioner’s argument looks as follows
We can see Justice Thomas’ closely interspersed questions at the beginning of oral argument with the short intervals between Justice Thomas’ questions and Mr. Coghlan’s replies. Several justices spoke in two intervals during Mr. Coghlan’s argument including Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh.
During the respondent’s arguments, Justices Kagan, Gorsuch, and Roberts appear to be the most active participants.
One method social scientists use to determine how a justice might vote in a case is by looking at which party they spoke with more, with the intuition they will speak more to a party they intend to vote against. This is not an exact science by any means but is a useful tool in early prediction analysis.
The speaking breakdown showing whether the justices spoke more during the petitioner or respondent’s argument is shown below
The justices with prominent word count differences (>50 words) include Justices Gorsuch and Kavanaugh during the respondent’s argument and Justices Thomas, Roberts, and Sotomayor during the petitioner’s argument.
Wooden v. United States
The justices may build on the answers given by attorneys to prior questions. This is apparent with Justice Kagan’s early remarks in Wooden when she asked, “But, Mr. Kedem, you answered Justice Thomas first by saying it’s not only or even primarily a matter of time, and then, within two sentences, you said the question is whether there’s a continuous stream of activity, which does seem like it’s a matter of time. So isn’t it at least primarily a matter of time?” Justice Kagan built on Justice Thomas’ earlier point by then interceding, “I think what Justice Thomas might have been responding to is just a feeling that this is a very loosey-goosey test, you know, that it’s an all things considered, totality of the circumstances.”
The order of speaking in Wooden look like this during the petitioner’s argument
Justice Alito was quite involved, as were Justices Kagan, Barrett, and Breyer. Justice Alito in particular jumps into this argument earlier than he did in the arguments in the prior case.
The speaking sequence for the respondent’s argument looks as follows
Justice Alito appears less involved in these arguments while Justices Kagan and Gorsuch seem to participate the most. The graph of relative words spoken shades light on hypotheses generated from the speaking sequence charts.
Here we see that Justices Gorsuch, Breyer, and Kavanaugh spoke relatively more during respondent’s argument while Justices Alito, Thomas, and Barrett participated more during petitioner’s argument.
To dig a bit deeper, the next chart shows a heat map of the types of questions the justices asked during the entirety of arguments in Wooden.
This shows that Justices Gorsuch and Kagan asked more questions of the different types than the rest of the justices but also that the justices tended to use different rhetorical devices in their questions from one another.
Brown v. Davenport
The arguments in Brown featured two female attorneys which is a rarity before the Supreme Court. Looking first at the speaking sequence during the petitioner’s argument we see that several justices took up most of the time. Looking first at the speaking sequence during the petitioner’s argument we see that several justices took up most of the time.
Justices heavily engaged during petitioner’s argument include Justices Kagan, Sotomayor, and Breyer. This distinction between the justices shows that there may be an ideological split in this case which will be made clearer when looking at the differential word counts.
The speaking sequence for respondent’s argument is shown below
Justices Alito and Barrett appear much more engaged during respondent’s argument. Justice Kagan is earlier out of the gates in respondent’s argument than she was during the petitioner’s argument.
The word differentials help paint a fuller picture of the differential in justice participation between the two sides’ arguments.
This shows the possibility of an ideological split with Justices Alito, Barrett, Kavanaugh, Roberts, and Thomas speaking more during the respondent’s argument and Justices Breyer, Kagan, and Sotomayor more active during petitioner’s argument.
Hemphill v. New York
During the petitioner’s argument in Hemphill we see more lengthy engagements by Justices Alito and Breyer
Justice Sotomayor, however, grills petitioner’s attorney Jeffrey Fisher in the following sequence:
JUSTICE SOTOMAYOR: Mr. Fisher, under what theory would Reid be constitutional? I thought Reid basically said you can open the door to testimonial hearsay. So isn’t your — why was your argument as applied? When would it ever work –
MR. FISHER: Well, I — I –
JUSTICE SOTOMAYOR: — under your theory?
MR. FISHER: — I don’t think it would ever work, Justice Sotomayor. And we’ve made that clear –
JUSTICE SOTOMAYOR: So answer —
MR. FISHER: — in our briefing too, but –
JUSTICE SOTOMAYOR: — Justice Thomas’s question. Why didn’t you just say Reid is unconstitutional?
Justice Sotomayor participates at a greater rate during respondent’s argument as does Justice Gorsuch
The word count differential in these arguments looks as follows
Justices Thomas, Alito, Breyer, and Kavanaugh spoke much more during petitioner’s argument while Justices Gorsuch, Kagan, and Sotomayor were noticeably more active during respondent’s argument.
United States v. Zubaydah
Unlike some of the other arguments, several justices spoke more than once during petitioner’s argument in Zubaydah.
Justice Kagan has lengthy remarks beginning, “Well, on this issue of the appropriate level of deference, I mean, the question is — or one question is, what is the deference to?” Almost all of page 8 of the oral argument transcript is devoted to Justice Kagan’s questions. Similarly, Justice Sotomayor takes up almost all of page 10 of the transcripts with her remarks.
Chief Justice Roberts had more involvement in the respondent’s argument.
The Chief’s remarks take up almost a full page of transcripts beginning at the end of page 50 and concluding on the bottom of page 51.
The Chief begins this passage pointing out a potential flaw in respondent’s reasoning, “I — I — I guess I’m having trouble following exactly what it is you’re looking for. And I don’t think you’re grappling with the point that Justice Barrett just raised, which is you — everybody may know about this. You know, as — as you’ve put it, it’s no secret at all.”
The word count differential in this case is shown next
Here we see Justices Roberts, Barrett, and Alito speaking more during respondent’s argument while Justices Kagan, Gorsuch, and Sotomayor more active during petitioner’s argument.
We can then take the sum of the justices’ word counts across all of the first week’s arguments to see who spoke the most.
Two of the more liberal justices on the Court, Justices Kagan and Breyer spoke most. The other liberal on the Court, Justice Sotomayor was the median justice in terms of words spoken. Justices Roberts and Alito spoke most of the more conservative justices, while normally reticent Justice Thomas maybe spoke more than some might have anticipated. Justice Kavanaugh who had to participate in the arguments telephonically due to Covid-19 protocols was the least active justice during the first week’s arguments.