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Measuring Oral Arguments In The 2023/2024 Term

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?

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cartoon The Supreme Court architecture

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.

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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.

Areas of Focus

Another area of interest in oral argument is the focal point of the argument. Is it precedent? Maybe a statute? Even if these facets are clear, their relative importance may not be.  One way to measure the importance of a precedent, statute, or concept to each case is to look at the frequency with which each aspect is mentioned. The chart below shows some of these themes from oral arguments in Campos-Chaves and Fikre.

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There were two main precedents discussed in Campos-Chaves: Pereira and Niz-Chavez. These cases set standards that led to questions of application in oral arguments. These will inevitably be mentioned in the Court’s opinion in the case. So was the less important but still applicable case Mendez-Collin. The lower court, the Ninth Circuit, was mentioned several times as was the implementing agency, the Board of Immigration.

For Fikre the main area of focus was the No Fly List.  Justice Sotomayor provides an example of how the No Fly List comes into play:

“…[h]e does a fundraiser for his mosque. He has no idea that the mosque is under suspicion. You put him on the No Fly List. You now give him this declaration that says on the — we’re not going to put you on the No Fly List for anything that’s happened in the past.”

There is also a mootness question that raises Article III concerns in the case that came up several times during the arguments. Will the themes discussed in greater detail have more of an impact on opinions? More than likely and this understanding of proportional importance should provide a sense of the justices’ area(s) of interest.

Network Effects

The justices’ interactions in oral argument matter. They affect the substance of opinions, the foci of cases, and the voting coalitions that form.  While some of things like a justice’s relative speech to each side in a case have already been tackled in some depth by myself and other scholars, two lesser probed phenomena include the order of the justices’ engagements in oral argument, and how and when the justices play off each other’s questions.

The justices aren’t isolated entities in oral arguments. Even though they direct individual questions to the attorneys, they rely on each other to build on each’s ideas and this interplay is consequential in how the arguments proceed.  Below are the first twenty speakers in order, excluding attorneys, for the Campos-Chaves and Fikre arguments. First Campos-Chaves

Along with looking at individual level engagement, looking at when the justices engage is important as well.  For instance, we see back and forth between Barrett and Jackson and then Sotomayor and Jackson during the petitioner’s argument. In the respondent’s argument we see Gorsuch and Alito trading off turns as well as Barrett and Sotomayor, and then Kavanaugh and several justices. These opportunities are often times laden with justices building off other justices’ points as well as pushing those issues even further. While in some instances justices may try to render damage control from another justice’s line of questioning, in other instances justices refine ideas brought up by the previous justice’s questions.

Here is the order in the Fikre case:

During the petitioner’s argument we see Kavanaugh highly engaged in the petitioner’s argument often following points by Jackson and Kagan. In the respondent’s argument Sotomayor and Alito trade off turns as well as Kavanaugh and Alito. We might assume Sotomayor was trying to push the pendulum away from some of Justice’s Alito’s points while it is more likely that Kavanaugh and Alito are interested in similar things even if they take the discussion in divergent directions.

Maybe even more meaningful than the order of speaking is which justices make points that other justices wish to hammer down to a greater degree. This is done when one justice refers to another justice’s comments earlier in the argument. I tracked these references for all arguments in the January Sitting.

The justices’ references to other justices’ points earlier in the argument create an interactive network where some justices’ points are points of focus more than others. This may relate to the amount a justice speaks, but it also has to do with whether what is said is relevant to one or more other justices. Below are all justice-to-justice referencing pairs that occurred three or more times during the Sitting.

Justice Kagan was the justice referred to most often during this Sitting which is probably evident from how frequently she is on top of the other justices’ lists. Focusing on the network, Justice Kagan is the most prominent justice followed by Justices Gorsuch, Barrett, and Jackson. Viewed as a network graph with both lines and fonts that reflect the justices prominence, we see the following.

Along with the justices described above as most central to this network, Chief Justice Roberts, Justices Thomas, and Justice Alito play much smaller roles in the network as graph shows.

Concluding Thoughts

Oral arguments impact the justices’ decisions. They may not always change votes, but they inevitably play a role in opinion language. Some justices’ votes may be impacted through the arguments as well. While the amounts of speech and the difference in the amounts each justice speaks to both parties in cases have been scrutinized to a large degree, the measures in this post have not been investigated to the same extent. Justices’ relative engagement in each case, the attorneys’ engagement, the focal points in each argument, and the order and network of justice speech all probe different and significant dimensions of oral arguments.

While these measures do not forecast outcomes in cases and provide only insights into how the justices may vote, they do go to the substance of the arguments. When and how do the justices engage? When are they more and less interested and when might they play a larger role in decision making? The analyses in this post go to these questions and provide a way to think about arguments that may not have been otherwise easily identifiable.

Thanks to Jake Truscott who provided oral argument data used in this post.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on X/Twitter and LinkedIn. He’s also on Threads @dradamfeldman and on Bluesky Social @dradamfeldman.bksy.social.

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