The Term so far . . .

It is early days, but we thought it worth a preliminary look at the justices’ and the advocates’ relative participation at oral argument in the 2019 Term. The graph below shows the number of words spoken in by each group, in aggregate, in the 15 cases heard so far this Term, and in the 71 cases heard last Term, for context.

A comparison of words spoken at oral argument in the 2018 and 2019 Terms by the Advocates and the Justices
A comparison of words spoken at oral argument in the 2018 and 2019 Terms by the Advocates and the Justices

As illustrated, there is considerable variation in participation between cases, with some controversies inspiring more words from both the justices and the advocates, some from one or the other, and some quiet cases, such as the very first case, Kahler v. Kansas, a murky death penalty case. But the overall trends are, so far, indistinguishable from last Term.

The picture is more interesting when looked at broken down by individual justice, as in the next graph. Last Term, we showed that Justice Kavanaugh gained momentum after a quiet start, following his highly controversial confirmation hearings. That trend has continued this Term, with Kavanaugh overtaking fellow conservatives, Chief Justice Roberts and Justice Gorsuch, though not yet Justice Alito. No word from Justice Thomas this Term as yet.

A comparison of words spoken at oral argument in the 2018 and 2019 Terms, by Justice.
A comparison of words spoken at oral argument in the 2018 and 2019 Terms, by Justice.

Also apparent is that Justice Ginsburg continues to increase her verbal contribution at oral argument, a good sign of her improving health. She is still relatively quiet compared to the other liberal justices. Indeed, other than Justice Ginsburg, we see the same liberal/conservative divide as last Term. The liberal justices speak more than the conservative justices, even as the conservatives dominate the Court in terms of decision-making.

We will report more as the Court says more throughout the Term.

Look who’s talking less

ScotusOA took a break from our regular schedule last week to team up with Timothy Johnson and Eve Ringsmuth to write an op-ed for the Washington Post about the impact of the Court’s new two-minute rule. The new guideline that came into effect this Term states that the Justices will “generally” hold their fire during the first two minutes of oral argument, allowing attorneys to have their say in a “quiet zone” before the justices interrupt with their questions and comments.

As we note in the op-ed: “Given that the court heard only nine cases in the first month of the term, any analysis of the effect of the new rule is preliminary. “ Nonetheless, the preliminary results are fascinating! We will leave two of the figures from the op-ed here as a teaser and suggest that readers take in the full piece on the Washington Post website: https://www.washingtonpost.com/outlook/2019/11/01/look-whos-talking-less-supreme-court-justices/

The Effect of the Two Minute Rule in Oral Argument based on the October 2019 Cases (Words Spoken) As published in the Washington Post, November 1, 2019 at 5:00 a.m. CDT.

The Effect of the Two Minute Rule in Oral Argument based on the October 2019 Cases (Pace of Speech) As published in the Washington Post, November 1, 2019 at 5:00 a.m. CDT.

The four of us (Jacobi, Johnson, Ringsmuth, and Sag) plan to follow up with a more robust analysis once we have more data.