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
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.
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.
This week we have a guest blogger, a Northwestern Pritzker law student, Maveric Searle, who developed a new measure of judicial ideology for a final paper in Tonja Jacobi’s Supreme Court cases seminar. He also applied it to the current Term, based on the limited decisions released so far, to answer the very pressing question of who we can expect to be the new median of the Court. Maveric has turned his paper into a ScotusOA post, providing the first take on the new ideological spectrum of the Roberts Court.
A new median
The retirement of Justice Anthony Kennedy
in 2018 represented a potentially pivotal moment in the modern history of the
Supreme Court. Kennedy had long held the spot of the median justice on the
Court. The median justice, whose vote is often the deciding vote in contentious
cases, is typically thought of as being the most powerful or the most
influential justice. Kennedy’s retirement represented not only the appointment of
a new justice, but also the opportunity for a new justice to fill the position
at the Court’s center. Chief Justice John Roberts is commonly seen as the favorite to become the new median justice. This
post analyzes the Court’s early rulings from the October 2018 Term to see if
Roberts has lived up to those expectations, or if the Court’s newest member,
Justice Kavanaugh, could be its new median.
Conceiving the Median: Agreeability and
Majoritarianism
The numbers above suggest that the
median is likely Kavanaugh or Roberts, each of whom has been in the majority at
a higher rate than their colleagues. Kavanaugh has a higher ranking than
Roberts, but importantly Kavanaugh did not participate in several cases this
term, and a dissenting vote in any one of those cases would have moved him
below Roberts.
Another straightforward approach is to
look at how often each Justice agreed with the other Justices. The median justice
should have a high agreement rate because, by virtue of being centrist, he or
she will generally agree with colleagues on either end of the spectrum more
often than will the opposite extreme justices.
Once again, Kavanaugh and Roberts are
duking it out for top spot, tied for who looks most likely to be the median in terms of average
agreeability rate. Given the similarities in both their rates of voting in the
majority and their average agreeability rating, a more sophisticated analysis
is needed to determine which of the two is the new median justice.
Ranking the Justices on a Left-Right
Ideological Spectrum
It is now well accepted who is a liberal
justice and who is a conservative justice, not only because the
justices are nominated and confirmed by increasingly polarized political actors,
but because each of the currently serving Justices has prior affiliations with
either the
Federalist Society or the American
Constitution Society. The key question is: what are the differences among
the liberals and among the conservatives? And in particular, with a new five
justice conservative majority, who will be the most moderate conservative
justice, and thus the median of the Court?
To identify the median justice by ideology
along a left-right continuum, the next measure examines how often each justice votes
with the conservative justices as compared to the liberal justices. Justices are
classified as liberal or conservative based on the political party of the
president who appointed them. It then counts how many liberal and conservative justices
each justice agreed with in each case (using the percentage of the ideological
bloc that the justice agreed with, to account for the fact that there are more
conservative than liberal justices).
In a unanimous decision, every justice would
agree with 100% of both the conservative and liberal justices. In a 5-4 ideologically
ordered decision, a conservative justice would agree with 100% of the
conservative justices and 0% of the liberal justices. In a case like Garza
v. Idaho—a 6-3
decision with Thomas, Alito, and Gorsuch dissenting—each justice in the
majority agreed with 40% of the conservatives (Roberts and Kavanaugh) and 100%
of the liberals. Each justice in the minority agreed with 60% of the
conservatives and 0% of the liberals. Justices are given weight for agreeing
with themselves to ensure that decisions with a lone dissenter have an impact
on the dissenting justice’s final score.
These percentages are then turned into an
aggregated 0–1 “liberal score” and an aggregated 0–1 “conservative score,” with
e.g. 60% agreement being a score of .6. A net ideology score is then determined
by subtracting the liberal score from the conservative score for each justice. Using
this method, unanimous decisions do not impact the final score because they
result in an equal increase to both the aggregated liberal and the aggregated
conservative score.
Finally, the net ideology scores are standardized
by taking the final score and dividing it by the number of non-unanimous cases
that each justice participated in. This yields a number between -1 and 1 for each
justice, who can now be ranked them from left to right.
The resulting ranking lines up well with common intuitions, with the possible exception of Justices Gorsuch and Alito: Gorsuch lying slightly to the left of Alito may surprise some, particularly given Gorsuch’s emphasis on originalism and Alito’s rejection of that methodological approach most commonly associated with conservatism.
However, the scores may be capturing some
nuance that would be missed by overly focusing on the two Justices’ rhetorical
approaches, as there are some areas where Gorsuch has shown himself to be more
liberal than Alito. For instance, in Biestek
v. Berryhill,
Gorsuch wrote a dissent that was joined by Justice Ginsburg. This dissent likely
represents the two formalists agreeing based on factors that were methodological rather than ideological. Given the limited
data available from the cases decided so far this Term, an unusual case like Biestek had a significant impact on
Gorsuch’s final score: this decision alone moves Gorsuch from slightly to the
right of Alito to slightly to the left. But Biestek
may be quite representative: when it comes to matters of fairness—a key concept
in the standard “underdog”–sympathetic model of liberalism—there is a strong
argument to be made that Gorsuch lies to the left of Alito in some areas.
Unlike the statistics on justice agreeability
and rate of voting in majority, the standardized ideology scores of Roberts and
Kavanaugh demonstrate a significant difference between the two Justices.
Although Kavanaugh has been in the majority at the highest rate, and he is tied
with Roberts in terms of average agreeability, Roberts’ ideology score puts him
distinctly to the left of Kavanaugh.
While it is still early in the
post-Kennedy era of the Court, and a number of the Court’s most controversial
cases have yet to be decided this term, this method suggests that Chief Justice
Roberts will in fact be the Justice to look to as the Court’s new median. The
early numbers suggest that we really are seeing “the Roberts Court.”
“There is a thin line that separates laughter and pain”
What do Justice Kagan and Justice Breyer have in common? They are both liberal in general, and fairly pragmatic on constitutional interpretation (although Kagan is much more formalist than Breyer in statutory interpretation). They also share is a tendency for self-deprecating humor. Take this example from oral argument in Ayestas v. Davis:
Justice Breyer: I don’t have it in anything I’ve looked at yet. But I have it somewhere in the back of my mind, which is sometimes wrong. [LAUGHTER]
Justice Breyer: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question.
Justice Kagan: I’ve forgotten my question. [LAUGHTER]
Mr. Carvin: –I — I was facing the same dilemma, Justice Kagan.
Justice Ginsburg: Let me — let me ask a question I asked Mr. Clement. It just seems–
Justice Kagan: See what it means to be the junior justice? [LAUGHTER]
But even when the justices are being ostensibly
self-deprecating, such as here, there is often a sharper point beneath the
surface of comments—Kagan was simultaneously making a joke at her own expense
and at the expense of her senior colleagues, calling attention to their
tendency to interrupt her.
Humor as hierarchy
Last week we
discussed some of the data on laughter at the Supreme Court in a new empirical study that is now forthcoming in Vanderbilt Law Review, Taking
Laughter Seriously at the Supreme Court. We showed that the justices use courtroom humor as part of
advocacy—the individual justices are far more likely to make jokes while
speaking to the advocates they ultimately vote against.
In addition to
using text mining to analyze over 9,000 occurrences of laughter at oral
argument since 1955, we also did things the old fashioned way and read about 1,000 instances of judicial humor between 2010 and 2017.
What we found, in a nutshell, was that judicial humor at the Supreme Court is often very much about dominance
and hierarchy. Breyer and Kagan are actually quite a contrast to the
rest of the Court in their repeated willingness to make jokes at their own
expense.
Most often, jokes at oral argument take the form of the
justices putting the advocates in their place. For instance, each of the
following got a laugh: when an
advocate said “We don’t disagree” and Justice Scalia responded “You’re
supposed to say, yes, sir, good. [LAUGHTER]”; when an advocate posed a rhetorical
question and Chief Justice Roberts responded: “I get to ask the questions.
You don’t. [LAUGHTER]”; and when an advocate suggested “I
don’t think this Court needs to get into…” a particular issue, and the Chief
responded “Well, I think you have to get into it since I asked you a question
about it. [LAUGHTER]”
Debunking the
equalization thesis
Although our reading of transcripts is obviously subjective,
the data backs up our impression that the justices use courtroom humor to
emphasize the weakness of the advocates.
One of the few prior
studies to try to empirically examine humor at the Court claims thatlaughter is primarily used as an
equalizing force, a means to foster a de facto egalitarian environment despite
the structured hierarchical nature of the Court. We debunk that claim. In fact,
the data shows that the justices most often use courtroom humor against an
advocate who is losing the argument (see the figure below), and against inexperienced
advocates.
“I like people who
win”
Just like the President, who “likes people who don’t get captured,” the Supreme Court justices like people who are winning, and like to make fun of advocates who are losing. The figure below shows the net difference in laughter for each justice in terms of whether the advocate ultimately won or lost the case. Almost all of the justices on the Court in the last 20 years tend to use courtroom humor significantly more during the time of the losing advocate (represented by the solid black bars to the left of zero).
Each justice’s tendency to inspire laughter, by difference in advocate win-lose. Original figure in Jacobi & Sag, Taking Laughter Seriously at the Supreme Court (2019)
Apparently,
inexperience is a laughing matter
We see a similar pattern for
experience.
The justices employ
courtroom humor significantly more against inexperienced advocates. Since 1955,
advocates making their first appearance before the Court endured the
justices’ wit at a rate of .55 episodes per appearance. That figure drops to
just over .40 for advocates with less than ten arguments under their belt, and
to a mere .19 for the elite lawyers appearing for at least their eleventh time. These differences are just the tip of the iceberg. Further
examination shows that there is a significant interaction between advocate experience,
laughter, and both individual justice’s votes and overall Court win-loss differentials.
We go into these issues in much more detail in Taking Laughter Seriously at the Supreme Court, but the bottom line is that laughter at the Court is not really about mirth, wit, or levity; the justices use courtroom humor as a tool of advocacy and to reinforce the hierarchy between the winners and loser and the experienced and inexperienced.
Justice Kennedy once made a witty joke at oral argument concerning physics, saying: “what the statute does is it’s phrased in terms of place, but it really has consequences as to time. Einstein would have loved it: you can’t define space without time. [LAUGHTER]” Another time, when the issue was whether throwing out a fish was destruction of evidence under a corporate law statute, he drolly quipped, “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act. [LAUGHTER].” And Justice Kagan once showed it was possible to have fun with Latin, commenting “. . . de minimis is not enough, you know. It’s “merely de minimis.” (LAUGHTER.)”
More often, however, the justices are making a very
deliberate point in their use of humor, beyond mere witticisms. For instance,
in deciding whether a law sanctioning a baker for his refusal to make a wedding
cake for a gay couple was contrary to the First Amendment, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner’s
advocate Kristen Waggoner argued that there is speech value in making a cake,
but tried to limit the Court’s concern about the slippery slope of other
applications. Justice Kagan asked why there isn’t the same protection for a
makeup artist, saying “It’s called an artist. It’s the makeup artist. (Laughter.)” Kagan was posing the
serious question of how such claims could be limited by asking the seemingly
absurd question of why hairstylists and others should not command the same
respect. Justice Breyer made a similar point about the potentially limitless
distinctions the Court would be asked to make if it ruled in favor of the baker
by resorting to the hyperbole of the Court deciding “42,000 cases, [one for] each
kind of vegetable — (Laughter.)” Justice Gorsuch, on the other hand, emphasized
that wedding cakes are not made or consumed for the taste but for their
symbolism and artistry, by joking that “I have yet to have a . . . wedding cake
that I would say tastes great. (Laughter.)” It is unsurprising that Gorsuch
voted for much stronger protection for the baker than Kagan’s concurring
opinion, joined by Breyer.
The latter set of examples are part of a broad pattern that
we identify in a new study,
Taking Laughter Seriously at the Supreme
Court, forthcoming in Vanderbilt
Law Review. We analyze every instance of laughter from 1995 until the 2017
Term—9,000 instances of laughter witnessed at the Court in 6,864 cases, over 63
years—and also qualitatively individually assess all 1,061 episodes occurring between
2010 and 2017. Until now, laughter at the Court has been examined by looking at
individual Terms, with the results analyzed in terms of which
justice is the funniest. We show that when the justices employ courtroom
humor it’s no randomly frivolity and it is usually not even especially funny; rather,
laughter is used by the justices as a weapon of advocacy.
We have shown previouslythat the justices strategically use up the time of advocates arguing positions that they ultimately vote against, interrupt those advocates more than their counterparts on the other side, and direct more questions to advocates they favor and more comments to advocates they disfavor. We argue this constitutes a new level of advocacy by the justices on the contemporary Court. In the same vein, we show in our new study that the justices most often use courtroom humor when they will eventually vote against the side the advocate is representing.
Laughing all the way
to the conference vote
The figure below shows this laughter differential. Just as
we have shown that judicial advocacy is reflected in the “disagreement gap”—that on
average the justices have much more to say during oral argument to the party
they ultimately vote against—there is also a “laughter gap,” with the justices
making more jokes during the time of the advocate they ultimately rule against.
The figure below shows the proportion of instances of laughter for each justice
of the modern Court, depending on whether the justice ultimately agrees or
disagrees with the advocate.
ScotusOA Agree/Disagree Difference in the Use of Courtroom Humor at the Supreme Court, for each justice, per-argument
In the top half of the figure are justices who are
effectively neutral; in the bottom half are justices use courtroom humor in a
biased manner, making jokes at the expense of advocates with whom they
disagree. Significant differences only occur for justices who lie to the left
of zero, i.e. those who make more jokes during the time of advocates with whom they
disagree. As we will explore more in future posts, note that all of the more
recent justices lie in the bottom half of the table, showing a significant
tendency to use laughter as advocacy against their “foes.”
In regression analysis in the article, we show that the
effect of the justices who are “biased” in their use of humor significantly
outweighs those justices who are “neutral,” even when looking at the whole
period of the modern Court, including the less boisterous Burger and Warren
Courts.
Most of the jokes at oral argument are at the expense of the
advocates, but there are some occasional inter-justice zingers worth noting. When
Justice Alito joked “Well, I think what Justice Scalia wants to know is what
James Madison thought about videogames. [LAUGHTER]”, he wasn’t just making a
joke, he was taking a swipe at Scalia’s favored methodology, originalism. Predictably,
there are quite a few joking exchanges between Justice Scalia and Justice
Breyer, two justices whose relationship does not appear to particularly
harmonious. The following exchange is typical:
Antonin Scalia:
I think that Justice Breyer is suggesting that if you treat unconstitutionally
a whole lot of people, you can get away with it. [LAUGHTER]
Stephen G Breyer: Oddly enough, I was not
suggesting that. [LAUGHTER]
For the most part, the justices use courtroom humor
intentionally and strategically. This is apparent from the content of some of
their jokes, and it also apparent in the broader trends in the data. In this
post we have focused on how the incidence of judicial humor falls overwhelming
on the advocates the individual justices disagree with. In a future post we
will address other insights we derived from the data.
The data that makes our analysis possible is a resource that had to be created and nurtured
All of the empirical analysis at ScotusOA.com is based on
the SCOTUS transcripts. We constructed a dataset drawn from the text of every
Supreme Court oral argument from 1955 to 2017, based on 1.7 million speech
events by justices and advocates. All of this came from Oyez.com. The Supreme Court makes some of these transcripts available
but not all—only 15 Terms of the six decades that Oyez provides—and many are
not fully identified as to who the speaker is. Oyez developed a program to
identify the speaker, went back through the transcripts to 1955, and continues
to improve the quality of the transcripts, checking for accuracy. How all of
that data became available is an interesting story.
The history of the development of this invaluable resource
is an interesting tale of the somewhat obsessive focus one person, Jerry
Goldman, on what many thought was a very obtuse idea for a long time, but
is now recognized as a great legal resource. It is also the story of the sometimes-odd
interaction between the very staid institution of the Supreme Court and quickly
changing technology.
Humble beginnings as a
set of HyperCards
Before all else, Alderson
Reporting Service created transcripts of SCOTUS arguments. These documents
found their way to Lexis and Westlaw beginning in about 1980, but they did not
identify the individual justices and they were text-only resources. Sometime in
the 1980s, Jerry Goldman, then a Professor of Political Science at Northwestern
University specializing in law and courts, had
the idea—during a Chicago Cubs baseball game—to create a digital Court resource
much like baseball cards. Jerry’s idea was that instead of photos of favorite
players, their biographical information, and fun sporting trivia, Court nerds
could enjoy the same but with justices and Supreme Court cases. Initially, the
project was called “The Hitchhiker’s Guide to the Supreme Court.”
The Internet was yet to be, so
Jerry set up the cards using HyperCard, a software tool that stacked and
interconnected digital cards, with text, images, and other simple concepts. The
Hitchhiker’s SC Guide used bitmapped, black-and-white images of the justices and
gave information on the cases and the Supreme Court building.
In the early 1990s, Jerry made came to an agreement with the
National Archives that allowed him to use their audio recordings of Supreme
Court oral arguments, so as long as they would not be used commercially. In
1994, with the help of Joe
Germuska, self-designated “Chief Nerd” of Northwestern’s Knight Lab, Jerry
created a small prototype of a digital audio workstation that would eventually allow
him to make the Supreme Court audio accessible. He received a small grant from
NUL, and a subsequent NSF grant in 1995-1996, to build the equipment, and
“OYEZ, OYEZ, OYEZ” was created. Another grant in 1996 from the NEH’s Teaching
with Technology program allowed Jerry to slowly add more cases, using simple
technology that involved cutting and pasting when updating changes to
materials. Although the site only had about 100 select cases—all significant
constitutional law cases—the server was struggling with the unwieldy
technology, so Jerry and Joe decided to create a database of case records and
justice records, with the audio on a designated audio server.
The Supreme Court creates
its own monster
In 1996, at the same time that Jerry was developing what
became Oyez.com, another resource, “May
it Please the Court” launched, in which 23 edited
versions of the oral arguments, with commentary, were made available for
purchase on cassettes. That project gained enormous media attention because the
Supreme Court threatened to sue the developer for using the case audio contrary
to the arrangement with the National Archives. Ultimately, the Supreme Court
gave in and actually changed its policy, permitting broader use of the
recordings. The controversy sparked the media’s interest in using audio
recordings of oral argument as part of their general news coverage, and that is
when the use of Supreme Court oral argument audio really took off.
That appetite for Supreme Court
audio hit another high in 2000, in response to Bush v. Gore. The prospect of the Supreme Court deciding a
presidential election led to a sudden and enormous demand for a live feed of
the two cases (Bush v. Palm Beach County
Canvassing Board and Bush v. Gore). Knowing
that the Court would be very resistant to a live video or audio feed, Jerry
wrote to Chief Justice Rehnquist on November 25 to try to convince him to
release the audio the same day as the argument, as a substitute for a live
feed. As seen in the fax reproduced below, Rehnquist wrote back, agreeing to release the recordings in these exceptional cases on the
same day as the argument. The remaining cases, orders etc. still had to wait until
the end of Term for release to the National Archives. Eventually, the Court adopted
the end of the week release of all audio, with occasional same-day release for
other highly salient arguments, such as the Obamacare arguments and some of the gay marriage cases.
Justice Rehnquist’s letter to Jerry Goldman regarding Bush v. Gore oral argument
Now, a multi-million
user interface
Gradually, with some assistance, Jerry went backwards
through the cases, collecting earlier arguments. Leveraging
various grants, and collaborating with several scholars, by 2003, the
collection extended back to 1980, and by 2014, the Oyez collection was made comprehensive
back to October 1955. Today, Oyez also includes not only oral arguments but opinion
announcements and speaker-identified transcripts. Jerry says: “The metadata for
every case—including our abstracts—remains a work in progress but every case that is
in Spaeth is represented in Oyez plus a
substantial number of pre-Spaeth (i.e., pre-1953) cases.” Along the way, SCOTUS
phased out its reel to reel recordings and went digital in 2004, and Jerry had
created a standardized process for making the data available quickly.
Since 2010, Jerry reports that website traffic has increased
at approximately 10% to 15% per year. Traffic has been growing particularly
strongly in the last two years, going from 3.3 million users (in 6.9 million
sessions) in the November 2011 to November 2012 period, to 7.2 million users
(in 14.2 million sessions) over the same period in 2017-2018. That is a lot of people
who owe a debt to Jerry for pursuing his vision with such determination.
The Supreme Court and
technology: A sometimes fraught relationship
Jerry defied traditional academic incentives and has made a
lasting contribution as a result. Jerry was advised by colleagues not to build
a resource that he would get little credit for and would take away time from
his research. Fortunately for those of us who enjoy not only empirical analysis
such as that done at ScotusOA, but those
who value timely analysis of the arguments on ScotusBlog and other forums, Jerry was
stubborn enough to continue.
The history of Oyez.com shows how technological change can
bring about institutional change. The Supreme Court has resisted the call for
television access for decades, and it is clearly going to continue to do so.
But the development of the Internet created the demand for a different type of access,
one that was harder to resist. Once it became clear through Jerry’s efforts that
online access to Supreme Court transcripts and audio was possible, a new
constituency developed around the demand for such access. The Court’s reasons
for rejecting televisions in the courtroom did not seem to apply to this new
medium. The Court had to either develop new reasons for why it would not make
transcripts and audio available, or else had to concede the point. In the end, the
Chief chose transparency, but the Court may not have anticipated all of the
implications of that move.
Lawyers, law students, journalists, and academics who study
the courts all benefit from Jerry’s work in founding Oyez.com. It is hard to
think of one person who has done more to make an aspect of the Supreme Court’s
decision-making process more transparent, available, and accessible to the
broader public.
This post is based in part on a telephone interviewwith Jerry Goldman on November 13,
2018, and follow-up emails.
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