Justice Thomas has been a long-time critic of Judges who speak out during oral arguments only to argue with their colleagues. At one point early in the arguments, Justice Scalia engaged in this dialogue with the counsel for Mr.Gall:
JUSTICE SCALIA: Well, you don’t — you don’t have to answer all of thse things for you case, do you?
MR. GREEN: No.
JUSTICE SCALIA: You’re not saying that a reasonable persion wouldn’t have found the opposite. YOu’re just saying that a reasonable person could have found what this district judge found.
MR. GREEN: That’s exactly right, Justice Scalia.
JUSTICE SCALIA: So why don’t you just swallow all these things and say, yeah, I suppose the court of appeals could say that, but –
MR. GREEN: I — I –
JUSTICE SCALIA: — but my point stands?
MR. GREEN: Yeah, well, I”m happy to swallow in that sense.
Justice Thomas has also expressed his displeasure at having to elbow his way into a discussion if he wants to ask a question. This dialogue occured between Justices Ginsburg and Stevens:
JUSTICE GINSBURG: How?
MR. GREEN: If the unwarranted -
JUSTICE GINSBURG: How can it fix the -
JUSTICE STEVENS: One question. Why couldn’t, if…[asks lengthy question]
The Chief Justice has an interesting dialogue with Mr. Green (in the laboratory with a candlestick?) about the presence of two conflicting judges on the same court:
CHIEF JUSTICE ROBERTS: But if you have two district judges in the same courthouse and the one says, when I have a young defendant I always — I forget whether the term is “vary” or “depart” — but I always go down, and the next judge says, I never consider age. Those — both of those are upheld under your view, I take it?
MR. GREEN: Yes, both — both would be upheld.
Justice Souter than proposes that abuse of discretion should be a holistic analysis of multiple cases in multiple regions to determine whether or not a single case was ‘incorrectly’ decided.