A week ago, the Supreme Court heard oral arguments in five cases.
These cases ranged from handling land and water disputes to increasing penalties, from admitting evidence in court to granting state secret privileges.
Much can be made of the words the judges and lawyers said at the hearing.
What is not so obvious is that quantitative methods can provide additional context to help understand the judges’ involvement in oral arguments and how to vote on the merits.
Mississippi versus Tennessee
The court started with arguments in Mississippi V. Tennessee with introductory remarks by the petitioner’s attorney, John Coghlan. Then Judge Thomas opened the questionnaire by asking, “Well, attorney, you seem to be complaining about Tennessee pumping water out of Mississippi, but you admit that Tennessee doesn’t cross the Mississippi border, do you?” Judge Thomas didn’t let Mr. Coghlan finish answering the question before asking his next question, “Okay. So – but the case you cite as the intrusion of – I think it’s Tarrant or Tarrant – wasn’t that a cross-border situation? ”The order in which the petitioner argued was as follows.
We can see the tightly scattered questions from Judge Thomas at the start of the oral argument with the short gaps between Judge Thomas’ questions and Mr Coghlan’s answers. Several judges spoke twice during Mr Coghlan’s argument, including Chief Justice Roberts, Justice Kagan and Justice Kavanaugh.
During the Respondent’s argument, Judges Kagan, Gorsuch and Roberts appear to be the most active participants.
One method social scientists use to determine how a judiciary might vote on a case is by looking at which party they have spoken more to, with the intuition that they will speak more to a party they are against want to agree. This is by no means an exact science, but it is a useful tool in early predictive analysis.
The breakdown of speeches, which shows whether the judges spoke more during the petitioner’s or defendant’s argument, is shown below.
The judges with clear differences in word count (> 50 words) include Judges Gorsuch and Kavanaugh during the Respondent’s argument and Judges Thomas, Roberts and Sotomayor during the petitioner’s argument.
Wood versus United States
The judges can build on the attorneys’ answers to previous questions. This is evident in Justice Kagan’s early observations in Wooden when she asked, “But, Mr. Kedem, you responded to Judge Thomas first by saying that it was not just, or even mainly, a matter of time, and then within two sentences was the question of whether there was a continuous flow of activities that … seems to be a matter of time. So isn’t it at least primarily a matter of time? “Judge Kagan built on the earlier point made by Judge Thomas, who intervened at the time:” I think what Judge Thomas may have reacted is just the feeling that it was a very is a looser test, you know that it is all a set of circumstances. “
The order of speech in wood looks like this during the argument of the petitioner.
Judge Alito was quite involved, as was Judges Kagan, Barrett, and Breyer. In particular, Judge Alito jumps into this argument earlier than he did in the arguments in the previous case.
The speaking sequence for the respondent’s argument is as follows.
Judge Alito appears to be less involved in these arguments, while Judges Kagan and Gorsuch appear to be most involved. The relatively spoken word graph highlights hypotheses generated from the speech sequence diagrams.
Here we see that Judges Gorsuch, Breyer and Kavanaugh spoke relatively more during the defendant’s argument, while Judges Alito, Thomas and Barrett participated more in the petitioner’s argument.
To dig a little deeper, the next diagram shows a heat map of the types of questions the judges asked throughout the entirety of the arguments in Wooden.
This shows that Judges Gorsuch and Kagan asked more questions of different kinds than the rest of the judges, but also that the judges tended to use different rhetorical means in their questions.
Brown versus Davenport
The arguments in Brown showed two female lawyers, which is a rarity in the Supreme Court. If we first look at the sequence of speeches during the petitioner’s argument, we see that several judges took up most of the time. If we first look at the sequence of speeches during the petitioner’s argument, we see that several judges took up most of the time.
Judges Kagan, Sotomayor and Breyer were among the judges who were heavily involved during the petitioner’s argument. This distinction between judges shows that there may be an ideological split in this case, which becomes clearer when looking at the different word counts.
The speaking sequence for the respondent’s argument is shown below.
Justices Alito and Barrett appear to be much more involved during the defendant’s argument. Judge Kagan is out of the gate earlier in the Respondent’s argument than during the petitioner’s argument.
The word differentials helps paint a more complete picture of the difference in participation in justice between the two sides’ arguments.
This shows the possibility of an ideological split with Judges Alito, Barrett, Kavanaugh, Roberts and Thomas, who spoke more during the defendant’s argument, and Judges Breyer, Kagan and Sotomayor, who were more active during the petitioner’s argument.
Hemphill versus New York
While the petitioner argued in Hemp hill we see longer engagements of the judges Alito and Breyer
However, Judge Sotomayor grills petitioner Jeffrey Fisher’s attorney in the following order:
JUSTICE SOTOMAYOR: Mr. Fisher, what theory would Reid be constitutional by? I thought Reid was basically saying you can open the door to hearsay testimonials. So if your argument isn’t – why was your argument used? When would it ever work –
FISCHER: Well, I – I –
JUSTICE SOTOMAYOR: – according to your theory?
FISHER: – I don’t think it would ever work, Judge Sotomayor. And we made that clear –
JUSTICE SOTOMAYOR: So answer –
FISHER: – also in our briefing, but –
JUSTICE SOTOMAYOR: – Question from Judge Thomas. Why didn’t you just say Reid was unconstitutional?
Judge Sotomayor participates to a greater extent in the defendant’s argument, as does Judge Gorsuch
The word count difference in these arguments is as follows.
Judges Thomas, Alito, Breyer and Kavanaugh spoke much more during the petitioner’s argument, while Judges Gorsuch, Kagan and Sotomayor were noticeably more active during the defendant’s argument.
United States versus Zubaydah
Contrary to some of the other arguments, multiple judges spoke more than once during the petitioner’s argument Zubaydah.
Judge Kagan has long remarks that begin, “Well, on that matter of due deference, I mean the question is – or a question is what is deference?” Most of the entire page 8 of the hearing transcript is dedicated 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 of a share in the defendant’s reasoning.
The chief’s remarks take up almost a full page of transcripts, beginning at the end of page 50 and ending at the end of page 51.
The chief begins this passage, pointing out a possible flaw in the respondent’s reasoning: “I – I – I think I’m having trouble following exactly what you’re looking for. And I don’t think you’re dealing with the point Justice Barrett just brought up, and you are – everyone may know about it. Do you know how – how you put it, it’s no secret at all. “
The word count difference in this case is shown next.
Here we see Judges Roberts, Barrett and Alito speaking more during the defendant’s argument, while Judges Kagan, Gorsuch and Sotomayor are more active during the petitioner’s argument.
We can then pull the sum of the judges’ word counts over all the arguments for the first week to see who spoke the most.
Two of the more liberal judges on the court, Judges Kagan and Breyer, spoke the most. The other liberal in the court, Judge Sotomayor, was the median judge on spoken words. Judges Roberts and Alito spoke most of the Conservative judges, while the normally reticent Judge Thomas spoke perhaps more than some would have expected. Judge Kavanaugh, who was forced to participate in the arguments by phone due to COVID-19 protocols, was the least active judiciary during the first week’s arguments.
Read more in the Juris Lab …
Adam Feldman heads the process consulting firm Optimized Legal Solutions LLC. For more information, write to Adam at email@example.com. Find him on Twitter: @AdamSFeldman.