Gregory Garre, former Solicitor General, will argue two times in the next two weeks, once in Christian Legal Society v. Martinez for the respondents and once in Monsanto v. Geertson Seed Farms for the petitioners. Last year, another Gregory – Gregory Coleman – argue twice during the April session. Curious.

Related posts

• Time to Update the Resume (April 29, 2009)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
• The Weeks Ahead (April 12, 2009)

I’ve been looking at the data with an eye towards gleaning a patter from the Court’s decisions. I’m not sure how the decision-making process works, but I’m certain that this is a decision made by the Chief Justice or the entire court- this is not a decision that could be made by the court’s staff.

Assuming that one or more members of the court actively vote on whether or not to grant C-SPAN’s infrequent requests, there are a few theories that could explain how the court decides when to release oral argument recordings on an expedited schedule:

1) A few of the justices wants to emphasize the seriousness of the case to one of their colleagues and therefore allows C-SPAN to air audio coverage of the case. Allowing audio to be released could play a role in amplifying the media coverage of a case and the Justices would certainly notice if their voices were being broadcast on the nightly news. In a case like Heller, the conservative justices might want to make it clear to Justice Kennedy that public opinion belong to their side.

2) The flip side of (1). Justices are trying to underscore the importance of a ruling for one of their fellow justices in an effort to make an uncomfortably broad ruling seem more palatable. For example: In a case like Christian Legal Society v. Martinez, the conservative justices might like to see media coverage minimized so Justice Kennedy wouldn’t feel so uncomfortable ruling in their direction.

3) Another strategic move I haven’t discovered (TITCR)

4) Caprice.

You can see the C-SPAN list below the fold.

2000-2001 Term
1-Dec Bush v Palm Beach County Canvassing Board – Agreed
11-Dec Bush v Gore – Agreed

2002-2003 Term
1-Apr Grutter v Bollinger – Agreed
1-Apr Gratz v Bollinger – Agreed

2003-2004 Term
8-Sep McConnell v FEC – Agreed
20-Apr Rasul v Bush and Al Oday v US – Agreed
27-Apr Cheney v US District Court – Agreed
28-Apr Hamdi v Rumsfeld – Agreed
28-Apr Rumsfeld v Padill – Agreed

2004-2005 Term
13-Oct Roper v Simmons – Denied
2-Feb McCreary County v ACLU – Denied

2005-2006 Term
30-Nov Ayotte v Planned Parenthood of Northern New England – Agreed
6-Dec Rumsfeld v Forum for Academic & Institutional Rights – Agreed
16-Feb Request to tape the investiture of Alito at the Court – Denied

1-Mar League of United Latin v Perry – Denied
28-Mar Hamdan v Rumsfeld – Agreed

2006-2007 Term
8-Nov Gonzalez v Planned Parenthood – Agreed
8-Nov Gonzalez v Carhart – Agreed
4-Dec Parents Involved v Seattle School District No. 1 – Agreed
4-Dec Meredith v Jefferson County Board of Education – Agreed
10-Jan Davenport v Washington Education Association – Denied
20-Feb Rita v United States – Denied
25-Apr FEC v Wisconsin Right to Life – Denied

2007-2008 Term
9-Oct Stoneridge Investment v. Scientific Atlanta – Denied
10-Oct Medellin v. Texas – Denied
5-Dec Boumediene v. Bush & Al Odah v. U.S. – Agreed
7-Jan Baze v. Reesv – Agreed
9-Jan Crawford v. Marion County – Denied
18-Mar District of Columbia v. Heller – Agreed
25-Mar United States v. Ressam – Denied
16-Apr Kennedy v. Louisiana – Denied

2008-2009 Term
8-Oct Winter v. Natural Resources Defense Counc – Denied
6-Oct Altria Group, Inc. v. Good – Denied
4-Nov FCC v Fox Television – Denied
12-Nov Pleasant Grove City v. Summum – Denied
3-Dec Philip Morris USA Inc. v. Williams – Denied
10-Dec Ashcroft v. Iqbal – Denied
3-Mar Caperton v. A.T. Massey – Denied
29-Apr Northwest Austin Municipal Utility District v. Holder – Agreed
9-Sep Citizens United v. Federal Election Commission – Agreed

2009-2010 Term
2-Nov Jones v. Harris Associates – Denied
9-Nov Graham v. Florida – Denied
9-Nov Sullivan v. Florida – Denied
23-Feb Holder v. Humanitarian Law Project – Denied
1-Mar Skilling v. U.S. Enron – Denied
2-Mar McDonald v. Chicago – Denied
19-Apr Christian Legal Society Chapter v. Martinez – Denied

Total Cases – 46 (not counting request for Alito investiture)
Agreed – 21
Denied – 25

Related posts

• Oral Argument audio recording released in Northwest Austin (April 29, 2009)
• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Supreme Court will reargue Citizens United (June 29, 2009)

The Court will hear rearguments on September 9. Obviously, that means it will happen during OT 08 and a decision will be rendered before the start of oral arguments in October. OT 08 is not finished and, therefore, I can’t publish any truly final statistics until the end of September.

Related posts

• The Weeks Ahead (April 12, 2009)
• Supreme Court Oral Argument Tussle Gets Serious (October 11, 2008)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

Well, Carter Phillips of Sidley Austin has been creeping up for some time now and finally beat him when he argued for the respondents in Gross v. FBL Financial Services in March. Phillips’ online biography says that he now has 65 arguments.

By my count then, Phillips has argued the third most cases of anyone currently practicing, behind Michael Dreeben and Edwin Kneedler. What is impressive though, is that 56 of Phillips’ arguments came while he was working in private practice, possibly more than anyone else that I know of. Frey served as Deputy SG for 13 years (1973-1986) and likely amassed at least half of his current total during that time. Both Dreeben, Kneeder, and Lawrence Wallace (157 total, but retired in 2003) have argued all of their cases as members of the Office of the Solicitor General.

Related posts

• The Weeks Ahead (April 12, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Advocate Scorecard for OT00-Present (August 2, 2009)

Related posts

• Kagan May Not Argue Until OT09 (April 14, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• C-SPAN Releases Oral Argument Audio Request History (April 16, 2010)

I arrived in Washington around 11:30pm and, after a friend told me that no one was in line at the Court, we got chinese food in Chinatown. We got food and returned to the Court around 2:00 and ran into Ryan Bates and a group of the firefighters who had arrived around 12:30. We searched in vain for coffee and most sat around doing very little. Coffee came around 5:00 but for the most part, nothing of substance happened until 7:00a. Waiting in line for that long is never easy, but fortunately Norman Pattis, of the firm with which Karen Torre is Of Counsel, was behind us in line and happened to be a fascinating person. He was leaving DC that afternoon to have dinner with Sonia Sotomayor!

At 7:00a, the Court handed out tickets to everyone and allowed us to enter the building to get food at the cafeteria and use the restrooms. We reconvened in line at 8:45 and they initially allowed the first 50 people to enter the chamber. As #11, I was never terribly concerned about getting in, but there was always a threat that seats had been delegated away by parties.

Shortly after we filed into the courtroom, Attorney General Eric Holder and Solicitor General Elena Kagan walked in with a slew of people from the Justice Department. I saw Michael Dreeben (3rd most arguments completed amongst living people) and a few other attorneys from the SG’s office.

The Court convened and the Chief Justice asked Solicitor General Kagan to the podium. She formally introduced Attorney General Holder to the Court and he delivered a few short remarks. As he was going back to his seat, the Chief announced the decision in Nken v. Holder to a jovial courtroom chuckle. The Court had decided against the newly-minted Attorney General 7-2, with Justice Thomas joining a dissenting opinion written by Justice Alito.

After the customary 5-minute (ish) synopsis of the majority opinion, the Chief Justice asked a number of attorneys to the podium to introduce new members of the SCOTUS bar in open court. At one point, an attorney introduced his own wife and, to uproarious laughter, emphasized the standard declaration of the fitness of her character.

You can find a transcript of the arguments in Ricci here. Argument began with Gregory S. Coleman for the petitioners. Coleman was allowed to get about 30 seconds into his case before Justice Stevens interrupted to begin questioning.

Justice Kennedy asked some interesting hypotheticals during oral argument about whether or not cities should be forced to take statistically race neutral tests at every opportunity. You can find much more thorough recaps of the arguments by SCOTUSblog and the NYT.

I’ve been inside the courtroom before but I’ve never seen it packed with so many people before. The room is smaller than many people imagine but can be packed to fit a surprisingly large number of people. We are always reminded of “old” and “young” justices, but when I saw them all lined up, my first impression was that they are all, for lack of a better word, old. Justice Scalia is often called a ‘relatively-young’ Justice, but at 72 years-old, he is still above the average retirement age for someone in his economic class.

After arguments are complete, the Chief Justice submits the case and the Justices immediately swing around in their chairs and exit the courtroom. Justice Ginsburg had a bit of trouble getting out of her seat and Justice Souter had to help her up.

It is my firm belief that, for a portion of oral arguments, Justice Clarence Thomas read my amicus brief. Here is my evidence to support that claim:

After arguments, we immediately left the courtroom and congregated in the main hall leading out onto the steps. I ran into a person who I thought was Ted Olson in the cloakroom, but it turned out to be legendary conservative commentator George Will. We exited for the steps where we were greeted by a number of journalists and curious spectators. I saw the woman of my dreams- Nina Totenberg!!

After some of the crowds dispersed, I introduced myself to many of the parties involved in arguments and in the case. Edwin Kneedler was just as interesting and professorial as I had expected. He answered some of my questions about the most active advocates before the Court and I can now say with more authority that Lawrence Wallace has argued more than anyone else alive, Mr. Kneedler is next, and Michael Dreeben third. After that, I believe Carter G. Phillips came into fourth this year and Andrew Frey is slipped into fifth after being in third for several years.

Christopher J. Meade, the arguing attorney for the respondents, was incredibly interesting and kind. He delivered arguments that would have been impressive for some of the advocates I just listed, but this was only his fourth time before the Supreme Court. I told him after the arguments that I thought he presented a very strong case and that, even though I filed a brief for petitioners, I was somewhat sympathetic to his side. He asked me to blog about it if I really felt that way, and here it is!

Related posts

• The Weeks Ahead (April 12, 2009)
• Time to Update the Resume (April 29, 2009)
• Kagan to Split Time with Waxman in Citizens United (July 24, 2009)

Scene: Justice Breyer brings up a set of statistics from the record.

JUSTICE SCALIA: Excuse me. I am not following this exchange because I don’t understand whether the — the statewide percentage is the statewide percentage of English learners or the statewide percentage of all students.
MR. [KENNETH] STARR: Here is — and I think we can cut to — I’m sorry.
JUSTICE SCALIA: If you can’t answer that, I think Justice Breyer can. But I would like to know what comparison —
JUSTICE BREYER: He doesn’t actually have the right to ask me questions.
(Laughter.)
JUSTICE SCALIA: I don’t. That’s — that’s exactly true. But —
CHIEF JUSTICE ROBERTS: Very much true. Counsel, why don’t you try and answer?

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

OT06 was considered a particularly contentious term, but you don’t see that from the number of media advisories. I’m surprised not to see advisories for cases like Hein, Ledbetter, and Morse from OT06 and Medellin from OT07.

I’d have to know more about the procedure for issuing these advisories before I draw any other conclusions, but the numbers are pretty interesting.

Related posts

• The Weeks Ahead (April 12, 2009)
• Supreme Court will reargue Citizens United (June 29, 2009)
• Supreme Court Oral Argument Tussle Gets Serious (October 11, 2008)

Here are the total number of cases argued for the most notable advocates:

SG:
Edwin S. Kneedler – 5
     -Kneedler has argued more cases than anyone else currently practicing. His tally is now at an astonishing 105, which is second amongst all living people. Lawrence Wallace, who retired from the SG’s office in 2003, has argued 157.
Malcolm L. Stewart – 5
     -Not sure what his tally is, but I know that he argued a case in 1995 for the US as amicus curiae. Not sure about his specific tally, but it is definitely >40.
Michael R. Dreeben – 4
     -Dreeben is another lifer in the SG’s office. I have records of his arguments for the SG as far back as 1989. His tally is almost certainly >80.
Gregory G. Garre – 4
Lisa S. Blatt – 3
Deanne E. Maynard – 3
     -Relatively new addition to the SG’s core of SCOTUS advocates, argued first case in 2005
Curtis E. Gannon – 2
Douglas Hallward-Driemeier – 2
Neal K. Katyal – 2
     -Argued and won Hamdan v. Rumsfeld, Professor at GULC
Eric D. Miller – 2
Matthew D. Roberts – 2
Pratik A. Shah – 2

Private:
Theodore B. Olson – 6
     -Argued Bush v. Gore for Bush, also served as Bush’s first SG. Argued two cases during March sitting. Tally is currently >50. Co-Chair of appellate practice group at Gibson Dunn.
Carter G. Phillips – 6
     -Filed influential military amicus brief in Grutter. Current tally is 65. Partner at Sidley Austin.
David C. Frederick – 3
     -To be quite honest, I had never heard his name until now. Read his bio here. Apparently he worked in the SG’s office for a while.
Thomas C. Goldstein – 3
     -Rising star of SCOTUS bar, runs SCOTUSblog, sat second chair to Boies and Tribe in Bush v. Gore
Seth P. Waxman – 3
     -SG for the last 2 years of the Clinton Administration, head of Wilmer Hale appellate practice
Gregory S. Coleman – 2
     -Former Texas SG, will argue two of the term’s biggest cases on consecutive Wednesdays. I had lunch with him a few weeks ago and we talked about the two cases.
Christopher J. Meade – 2
     -Partner at Wilmer Hale under Waxman and Stevens clerk ’97. I’d consider him a rising star on the bar
Maureen E. Mahoney – 2
Andrew L. Frey – 1
     -Frey has argued 64 cases, which is, according to his bio, more than anyone else currently serving in private practice
Kathleen M. Sullivan – 1
     -Former dean of Stanford Law School, current professor at SLS. Famously failed bar exam on first try and once described by Lawrence Tribe as “the most extraordinary student I had ever had.” She was reportedly on the shortlist for Kagan’s SG position and is often considered a leading contender for a SCOTUS seat. Partner at Quinn Emmanuel.

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• The Weeks Ahead (April 12, 2009)
• Kagan to Split Time with Waxman in Citizens United (July 24, 2009)

For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.

The arguments of Lisa Blatt in US v. Flores-Montano can be found here. Arguments in that case were very technical and Ms. Blatt answered all of the questions with confidence. Ms. Blatt still works at the SG’s office and has argue two cases this term, most recently on March 31, 2009.

The Court also referenced another case in the same question but never cited the case. Does anyone know the name of the case?

Know your client’s business. One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: “What is the difference between beer and ale?” The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.

Any ideas?

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

Opinions published going into April sitting:

The reason for the increase in early opinions is that the court intentionally front-loaded its docket. With a front-loaded docket, the justices can more easily get opinions out early before the inevitable June rush.

April also brings the last two weeks of oral arguments. As noted by SCOTUSblog, the Solicitor General’s office will be participating in nine out of ten arguments during the two week sitting. Elena Kagan has yet to argue any cases for the United States and court watchers will be very curious to see which case she chooses as her first. Originally, al-Marri v. Bush was also scheduled for the term, but it was dismissed several weeks ago.

Sometime next week the court will release a hearing list that formally recognizes the attorneys slated to argue each case. It will be interesting to see which cases are assigned to the most senior advocates (Kagan, Edwin Kneedler, Neal Katyal) and which arguments are given to lower-ranking members (Michael Dreeben, Malcolm Stewart, Lisa Blatt, Matthew Roberts, William Jay, Toby Heytens, Eric Miller, Deanne Maynard) in order to decrease the burden on each individual advocate.

Aside from the SG, I’m not at all sure which advocates will be participating in the April sitting. Gregory Coleman from Austin, Texas will be arguing in both Ricci v. DeStefano and Northwest Austin Municipal Utility District No. 1 v. Holder on Wednesdays, April 22 and April 29, respectively. Thomas Goldstein will be arguing in Horne v. Flores on Monday, April 20. Seth Waxman will likely be arguing in Cuomo v. The Clearing House Association on Tuesday, April 28.

I will be traveling to Washington to hear arguments in Ricci v. DeStefano, the case in which I filed my first amicus brief.

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Time to Update the Resume (April 29, 2009)
• Nearly Final Term Statistics and Advocate Scorecard (June 29, 2009)

Once again, Justice Scalia comes in as the most talkative and averages 21 comments per hour of arguments. That shouldn’t surprise many people as he has always been known to be a particularly vocal member of the court. Justice Thomas still hasn’t spoken since February 22, 2006. Chief Justice Roberts and Justice Breyer both average about 18 comments per case. On the other side of the spectrum, Justice Alito spoke an average of only 5 times per case. Justices Stevens, Kennedy, and Ginsburg spoke with similar frequency at 12, 11, and 10 times per argument, respectively.

This chart covers the difference between Justices’s overall speaking average and their average per individual court. I’ve highlighted the times when justices had variations of greater than 5 in either direction. I was particularly surprised to see that Ninth Circuit Cases had very little effect on justices, and, if anything, they actually spoke slightly less than usual.

When more cases start coming down, I’ll be interested to see what effect speaking frequency has on voting. Does Justice Kennedy speak more when he votes in favor of a case? Do Justices Stevens or Scalia speak more when they think a case will come down 5-4? With only 2 cases decided on merit thus far, its hard to say at this point but I’ll keep track of the decisions as they come down and post when I’ve collected enough data for some basic analysis.

You can find the data in these formats: xls, numbers, and, of course, pdf. Feel free to play with the data and let me know what conclusions you come up with!

Related posts

• Updated Humor Statistics (March 7, 2008)
• Supreme Introductions (December 20, 2008)
• Methodology 101 (July 1, 2007)

Justice Thomas has shown the only reasonable upward trend and Justice Breyer has shown only a marginal downward trend. Aside from those two, the rest of the Justices have been pretty consistent over the past 15 years. I might extend the analysis to include the 1980′s, but that analysis would be hazy because the overall number of opinions will be larger on account of the larger docket.

Related posts

• Updated Humor Statistics (March 7, 2008)
• The End Of The World OR John Roberts Is The Silent Type (July 1, 2007)
• Supreme Introductions (December 20, 2008)

Speaking (pdf):

Laughter (pdf):

Related posts

• Updates (December 4, 2007)
• Updated Humor Statistics (March 7, 2008)
• Oral Argument Stats Posted (December 12, 2008)

No surprises here. Scalia talks almost twice as much as everyone else. John Roberts is incredibly personable and his colleagues are marginally funny as well.

Here is the highlight reel. I’ve tried to include sufficient background information, but you can always click on the link to take you to the transcript. Enjoy-

In Gall-

CHIEF JUSTICE ROBERTS: Well, I’m sure that’s not always true. I mean, if the leader of some vast conspiracy is the one who blows the whistle, I suspect he may well be charged anyway.
JUSTICE SCALIA: Lex Luthor might.
(Laughter.)

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.
(Laughter.)

In Kimbrough-

JUSTICE BREYER: If Congress passes a statute that says the mandatory minimum sentence of eight years for possessing a 12-inch shotgun unlawfully, does that mean it wants four years for a 6-inch shotgun?
(Laughter.)

In Torres-

CHIEF JUSTICE ROBERTS: Well, doesn’t that seem kind of odd, that if a State can have no role for voters, it can have a pure convention, that they’re penalized if they have some role for voters?
MR. SCHWARZ: I wouldn’t put it as being penalized, Your Honor. I think it is the —
CHIEF JUSTICE ROBERTS: Being found unconstitutional is a pretty severe penalty.
(Laughter.)

In Medellin-

JUSTICE BREYER: Maybe you could spend a minute explaining that, because, as I read the Constitution, it says all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges in every State — I guess it means including Texas —
(Laughter.)

JUSTICE SCALIA: That is conferring upon the ICJ the responsibility to decide the meaning of a United States treaty which is United States law.
MR. CRUZ: And —
JUSTICE SCALIA: I’m rather jealous of that power.
(Laughter.)

In Williams-

JUSTICE SCALIA: … So I guess the whole doctrine is — is based on dictum. So we may as well put it in all an appendix. Let’s put our dictum in an appendix. I agree.
MR. DIAZ: In answer to Your Honor’s question or comment —
(Laughter.)

In Danforth-

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be — we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia’s position is we have all that power in the world.
(Laughter.)
JUSTICE SCALIA: My position is we have asserted all that power in the world.
(Laughter.)

JUSTICE STEVENS: … But the notion we can make up a new rule of law at will strikes me as a very dramatic departure from what I understand the rule of law to require.
JUSTICE SCALIA: I’m really glad to hear that.
(Laughter.)

MR. DIAMOND:[After a few minutes without speaking] Your Honor —
CHIEF JUSTICE ROBERTS: I think you’re handling these questions very well.
(Laughter.)
JUSTICE GINSBURG: That was not a question addressed to you, Mr. Diamond.

In Davis-

JUSTICE SOUTER: So don’t you have to take — therefore, if you’re going to answer Justice Alito as you did, don’t you have to take the position that Carbone really is not good law and the Carbone/United Haulers distinction is not a — is simply not a relevant distinction?
As a dissenter in Carbone, I naturally do not find that the worst answer you could give.
(Laughter.)

JUSTICE ALITO: Well, as a dissenter in United Haulers, I also don’t think it’s a good distinction.

JUSTICE STEVENS: We are talking about not just a dormant Commerce Clause, but a dormant Congress.
(Laughter.)

In John R. Sand & Gravel-

[Background information-- Chief Justice Roberts represented the government during oral arguments in Irwin v. Deparment of Veteran's Affairs when he was a deputy solicitor general]

JUSTICE STEVENS: One last question: We disagreed on parts of the Irwin opinion, but I take it you would agree with me that the government was particularly well represented in that case, wouldn’t you?
(Laughter.)
MR. STEWART: The government could not have been better represented, Your Honor.
(Laughter.)
CHIEF JUSTICE ROBERTS: It is hard to understand how they could have lost the case.
(Laughter.)
MR. STEWART: I had the same reaction reading the transcript.

In FedEx v. Holowecki-

MR. ROSE: The charge Form 5 was file on — well, she signed it on the 30th. It may have been filed a couple of days later. But whatever it was, that was submitted. I sent it to the EEOC by, I think, FedEx.
JUSTICE SCALIA: But suit was pending at that time.
(Laughter.)
MR. ROSE: Well, I used FedEx —
JUSTICE SCALIA: That’s pretty risky.
MR. ROSE: I used FedEx for a record because I can use their tracking. Some of the tracking documents are in the joint appendix. I dealt with — I dealt with FedEx in the Bost case. I call it Bost. I’m not sure whether it’s “BOSST” or “BOEST.” He calls himself Tony, so I don’t know.
In any event –
[AWKWARD]
JUSTICE SCALIA: Answer my question. Was suit already filed at that point?

In Hall v. Mattel-

JUSTICE BREYER: My temptation is to say they’re open questions and they’d have to be argued on remand, which makes this case the case of the century, I guess, in a certain respect. It’s quite a difficult case.
MR. PHILLIPS: I was just looking for the case of the day, Your Honor, actually.
(Laughter.)

Related posts

• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)

I found transcripts from the usual place and I copied the text into TextMate. From there, I conducted a simple ‘search’ function that returned only results with the proper case. I searched for Justices names in all caps in an effort to avoid conversational references to Justices. For example, a search for ‘JUSTICE SCALIA’ would not return references to his name when another individual mentioned his name. I subtracted two (2) counts from the Chief Justice because he signals the beginning and end of every case. Justice are frequently cut off when beginning a question which can lead to them being counted twice in the tally, but that should effect all Justices equally.

You can find a far more asthetically pleasing version of the chart here. You can find the data in .xls format here and .numbers format here.

Some of the results were obvious- Justice Thomas doesn’t speak at all and Justice Scalia speaks a lot. Justice Scalia has the highest standard deviation, meaning his activity is the least predictable (without looking at the facts of cases.)

Speaking frequency isn’t strongly tied to writing frequency. The most frequent authors, Stevens, Scalia, and Thomas, speak it very different frequencies. Roberts and Alito, the two least prolific writers, are the most and least frequent interrogators, respectively.

Justice Ginsburg speaks less than I had expected. Looking back a major cases from last term, it shouldn’t have surprised me that Justice Ginsburg doesn’t speak too often. In Ledbetter, she spoke only 29 times, a number that is above her average, but not alarming by any means. In Carhart, she also spoke an inconspicuously low 10 times.

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

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.
(Laughter.)

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.

Related posts

• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)