Some things from this year’s oral arguments are clear. We know for instance, who is talking more and less. These intricacies follow from what we saw last term. Justice Jackson is the most active justice in arguments. Thomas is the least. There are several aspects of oral argument that are below this playing field surface. When are the justices engaged? Which justices interact with one another during arguments? How will all of this play out when opinions are finally released? These are some of the aspects of oral arguments covered below.
Specific Argument Engagement
The justices do not engage equally in all arguments. While some tend to speak more than others on the balance, there is also a relative amount of argument speech from each justice across arguments. It follows that one way to differentiate arguments within each justice is to look at when they participate more and less. The chart below tracks the three arguments where each justice spoke most and least. Alito, for instance, spoke most in the South Carolina NAACP case and least in Loper Bright. Barrett spoke most in Campos-Chaves. Jackson spoke most in Jarkesy, the SEC case, and her participation in that case was the most by any justice in any argument so far this term. Many of the justices have low word counts in one or more arguments, yet Thomas has the least words spoken across all arguments and in one argument: Campos-Chaves. It will be interesting to see how relative engagement plays out in opinions. Sometimes more engagement translates to opinion (separate or majority) writing, but not necessarily. It may mean that the justice has a stake in opinion language, but because this goes on behind the scenes, we will not likely ever know about that relationship. We can also look at the attorneys that spoke most so far in oral arguments this term. The numbers above give a sense of participation but do not necessarily dictate an outcome in each case. More speech can mean conveying more of an argument, but it can equally mean the justices are probing the weaknesses in an attorney’s argument. Several of the attorneys with the most participation are from the Office of the Solicitor General (OSG) including Brian Fletcher, Curtis Gannon, and Elizabeth Prelogar (the SG). In fact, SG Prelogar had four of the top ten highest word counts for an attorney this term. The bottom five arguments for a non-SG amicus are also shown which underscores the large difference we see in attorney word counts from top to bottom.
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