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And We’re Off To The Races At The Supreme Court

Justice Jackson is far ahead of the rest of the justices in terms of word counts from oral arguments. But do (or why do) word counts matter?

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cartoon The Supreme Court architecture

If you feel like the 2022 Supreme Court Term just ended, you are not alone. The justices began this term much like where they left off in June 2023 —  with the October argument session of the 2023 Term now complete and six oral arguments already under the justices’ belts we are seeing similar variation in their oral argument engagement to we had last year.  Once again, Justice Jackson is far ahead of the rest of the justices in terms of word counts from the arguments. Jackson is still anomalous not only in terms of the quantity of oral argument speech bit also in terms of confidence in her voice as a second term justice.  There has not been a justice with such high word counts thus far into a justice’s tenure on the Court at least as long as we have records of justices’ oral argument speech. Still, one common question that continues to linger: do (or why do) word counts matter?

To speak or not to speak?

The justices plausibly come into oral argument with a good sense of how they’ll vote in a case. By the time of oral argument, the justices and their clerks have already pored through case briefs and lower court transcripts. Oral arguments help shore up any loose ends, build the justices’ confidence in the direction they think they will vote based on the briefs, and help the justices better envision the policy repercussions of their decisions. When speech is used strategically, speaking more at oral argument provides a monopoly on these items.  Put another way, one justice’s speech means the other justices are, at very least (for the most part), silent.

Oral argument engagement also provides the justices with potentially valuable information.  Not only do the justices learn more about the attorneys’ arguments, but they let the justices learn more about their fellow justices’ positions. This is one potential reason to speak less. If justices want to learn about other justices’ positions on issues, they should defer to other justices to the extent that these views are made known. To the extent that the justices know each other’s positions on case issues prior to oral argument though this information is superfluous.

Since time at oral argument is a limited resource, justices have less of a chance to build off each other’s questions if one or several justices dominate the conversation. This factor is somewhat diminished though by the newer oral argument format that allows the justices individual speaking time before the rest of the justices all jump in as a group.

The bottom line is that talking time is a limited resource in oral argument. Justices engage in each argument in differential amounts, often relating to their need for information and their interest in the subject matter, but certain aspects of argument, like Justice Jackson often speaking the most, remain fairly consistent from argument to argument. The theories described above are agnostic as to the normative implications of speaking more or less but are intended to tether word counts to costs and benefits of more speech in the aggregate.

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2023 so far

As shown below, Justice Jackson is the clear leader of the Court in total argument word count so far this term, a demarcation that was also the case for the 2022 Term.

Jackson is already 3,182 words ahead of Justice Kagan who has spoken second most of the justices this term. To put that in perspective, the most a justice has spoken so far this term in a single argument is 2,352 words which is Justice Jackson’s counts from the South Carolina NAACP case, meaning Justice Jackson is already considerably more than one argument’s worth of speech ahead of any other justice in overall word counts through six arguments this term.

Justice Jackson led the justices in word counts so far in five of the six arguments so far this term with Justice Kavanaugh leading the group of justices in the Great Lakes Insurance case.  In Great Lakes Insurance, Justice Kavanaugh spoke 1,157 words compared to Justice Jackson’s 744 words.  We can only opine as to why the configuration of justices’ speech amounts differed in that case.

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Justice Alito is tracking ahead of where he was last term for word counts as the third most active justice this term compared with his fifth position (after Jackson, Kagan, Sotomayor, and Gorsuch) from the 2022 Term.

Based  on what was described above, below is how the justices’ word counts track across the cases from the 2023 Term October session.

A few other configurations of word counts for the 2023 Term so far are quite interesting. First, organizing the justices’ speech by justice gender.

When organized this way, the female justices averaged 6,118 words each while the men averaged 3,583 words per justice.  The female justices also spoke a total of 6,554 more words so far than the men.

We can also split the justices by ideology breaking the justices down to the three more progressive justices and the six more conservative justices.

Here while the conservative justices spoke more in total, the liberal justices spoke much more individually. The liberal justices averaged 6,847 words per justice while the conservative justices averaged 3,641 words across the arguments so far this term.

Trends from this term and last

There are several different ways to parse the justices’ speech across last term and the October session of the 2023 Term. Since Justice Jackson has been so far ahead of the other justices in average word count, this can first be visualized based on all arguments from both terms.  Justice Jackson’s word counts are in green [note: these are overall daily word counts so that the tallest humps relate to days with multiple arguments. Individual argument word counts are provided further down].

Next are the justices’ total word counts across last term and the first month of the current one.

Here you can see how Justice Alito has made the biggest transition from last term to this one.  Also, the top three justices in terms of speech counts from the combined terms are the three female, progressive justices, with Justice Gorsuch coming next and a fair amount behind them.

Looking at Justice Jackson’s oral argument engagement in isolation shows us her word counts by argument from most to least.

Jackson’s counts in the UNC affirmative action case and then in Gonzalez v. Google are far higher than in the other cases.  Her word count in the affirmative action case marks the only time justice spoke more than 3,000 words in an argument since the beginning of last term.  Her most active argument so far this term, Alexander v. SC Conference of NAACP, was her seventh highest word count so far on the Court.

Just to give some context across justices, the following graph tracks the total justice word counts for all arguments since the beginning of the last term.

The top oral argument by word counts is the UNC affirmative action case followed by Moore v. Harper, 303 Creative, Haaland v. Brackeen, and United States v. Texas.

Concluding Thoughts

The oral argument narrative for the past two terms has predominately been framed based on Justice Jackson’s participation.  Justice Jackson’s assessment of the costs and benefits of this participation obviously is that there is value in more speech. Most likely her past experience as Justice Breyer’s clerk (hint, hint), as a public defender, and a district court judge factor into her confidence speaking alone.

The other justices have shifted a bit in their participation from last term to this one with Justice Alito showing the greatest difference.  The conservative justices clearly participate in oral argument at lower rates than the progressive justices which leads to the inference that oral argument participation is not correlated with favorable decision outcomes on the merits (we could almost say it is negatively correlated but it is more likely that the numbers are more randomly related to individual peccadillos).  For no good reason aside from individual variation though we see clear trends in the justices’ oral argument participation. Perhaps by the end of the term when the decisions are all counted we will more clearly be able to associate oral argument participation with decisions’ (both majority and dissent) outcomes and more particularly with decisional language.

* None of this could not be accomplished without significant data wrangling by Jake Truscott.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on Twitter: @AdamSFeldman.

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