October 2018 Term in review — Part I

The Supreme Court has finished hearing oral arguments for the October Term 2018; analysis involving success rates will need to wait for all the vote outcomes to be revealed, but we can summarize much of the behavior at oral argument already.

As we have described in detail inThe New Oral Argument: Justices as Advocates, one of the defining features of modern Supreme Court oral arguments is how active the justices are. In The New Oral Argument, we argue that much of this activity is directed at judicial advocacy, and we found that “losers on the Court” tend to be more active, fighting back through their words. This includes justices who were in the minority when the case was decided. It also includes losers in a big picture sense: we found that when the Court has been dominated by conservatives, liberals have been more active—in contrast, in the 1950s and 1960s, when the liberals dominated, the conservatives were relatively more active. With the Court becoming even more conservative in the 2018 Term—with the retirement of the moderately conservative Justice Kennedy being replaced by now Justice Kavanaugh, anticipated to be considerably more conservative—we expected to see the liberals being more active than the conservatives. As the figure below shows, that is what occurred.

The figure above shows both words spoken and speech events by each bloc of justices, for the average justice within each category. On average, liberal justices each spoke approximately 37,000 words to the conservatives’ approximately 26,000 words per justice. Liberals engaged in more than 1,100 speech episodes on average, the conservatives only 950. Note that for both these calculations, we treat the conservative bloc as consisting of four speaking justices: Justice Thomas speaks so infrequently that he is in a class of his own (the “monastic conservative” bloc?).

Looking at the justices in more detail, the next figure shows the differences for the 2018 Term.

True to form, Justice Breyer was the most verbose justice in the Term, but he was not as far ahead of the other justices as he had previously been. Justice Sotomayor was not far behind Breyer, and in fact spoke more often. But as we know, Sotomayor is the most interrupted justice on the Court, as she was again last Term, so it makes sense that, as shown above, even though Breyer talked more than Sotomayor, Sotomayor needed more speech episodes to say less than Breyer.

For once, Thomas appears as a blip instead of a vacancy, due to those 41 words—all spoken in one case, all directed to one side (disagreement gap, anyone?), all during the advocate’s rebuttal, and all challenging the side making a Batson challenge in a criminal case. The facts of the case, Flowers v. Mississippi, were so outrageous that even the ordinarily prosecution-friendly Justice Alito was shocked by the astonishing behavior of the local prosecutor. Thomas’ intervention in Flowers was not inspiring: his three questions were premised on a misunderstanding of the law or the facts. We were also struck by the fact that the official court transcript contains extra words Thomas did not say but which were required/implied by traditional rules of grammar.

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In light of all the controversy over his nomination and his remarkable conduct during the nomination process itself, for which he subsequently apologized, Justice Kavanaugh’s performance on the Bench is obviously worthy of scrutiny.  When Kavanaugh first joined the Court, he seemed unconfident; after a few halting attempts to question the advocates, he soon became more practiced. However, throughout the Term, we noticed that Kavanaugh continued to cede the floor more often than is typical for a male justice.  

The other justice on everyone’s mind this year was Justice Ginsburg. Attention was drawn to Ginsburg due to her recent illness and ostensible frailty, but also because she was the star of an Oscar nominated biopic. The top three justices on both sides of the figure above are liberals, but Ginsburg was the exception, second bottom only to Thomas. Her activity cannot be assessed in raw totals due to her first absence from oral arguments due to illness. The next figure is also revealing on that question.

The figure above explores how Ginsburg’s and Kavanaugh’s performance at oral argument varied over the course of the Term. The figure shows the moving average in words spoken by our two key justices of interest, Ginsburg and Kavanaugh, as compared to the average for the other three liberals and other three conservatives (we have excluded Thomas who, despite breaking his silence, still barely registers). It shows the 71 cases of the Term, including Knick v. Township of Scott appearing twice, once for argument and once for re-argument. A moving average (here, of the last 7 cases) makes it easier to read any time trend that emerges, but it obscures the extremes—for instance, it will not show silence in a given case, but we can note that where it is interesting.

Ginsburg broke her ribs between cases 22 and 23, but her activity levels were already dropping from case 11 onwards, and she was silent in the two cases prior to breaking her ribs. We can only speculate as to whether she was already feeling ill from the cancer that was discovered after the break. She then missed 11 cases as she recovered from surgery. But the good news is that she is back up to full RBG activity levels—in fact, in the last dozen cases, Ginsburg has been more active than she was prior to the rib break or the cancer diagnosis. We hope this is a sign she is now in very good health. She is still not as active as the other liberals, all of whom are younger than her, but she is up to the level of the average conservative justice (who are also all younger than her).

Speaking of conservatives, our prediction that Kavanaugh became more active over time is borne out in the figure. He began as the second quietest justice on the Court until Ginsburg’s temporary decline; Kavanaugh is now on average very similar to the other conservatives. It is interesting to note that, comparing the conservatives and the liberals overall over the course of the Term, even though the conservatives were consistently less active than the liberals, the two groups moved largely in lockstep (except for a bump in the activity of the liberals during the 40s cases). This suggests that, with the exception of that group of about 10 cases, while there are systematic differences between the two groups, the justices as a whole agree on which cases are more worthy of their input.