Justices are talking more than ever - but what are they saying?
Oral arguments at the Supreme Court are a window into the personalities, beliefs, and behavior of justices. They allow advocates to engage directly with the highest court in the land. And over the last two decades, as country has become increasingly partisan, they've started to sound very different. We talk about how, why, and what's up with all the interrupting.
Helping us break it down is Tonja Jacobi, professor of law and the Sam Nunn Chair of Ethics and Professionalism at Emory School of Law. She also recently talked to us about Supreme Court ethics in the context of the recent news about gifts that justices have been receiving from wealthy political friends. We talk about several of Jacobi's studies on oral arguments, check them out:
Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments
The New Oral Argument: Justices as Advocates
Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice.
Transcript
Supreme Court Audio : [00:00:00] Here you have no compelling state interest that is worth consideration. Maybe Mr. Rodarte would feel differently. That may be true. Is he in the room yet? I hope he's waving a flag in the back. I think it's safe. Light bulb went out.
Supreme Court Audio : [00:00:19] The trick they play on new chief justices all the time. Happy Halloween.
Supreme Court Audio : [00:00:27] Mr. Chief Justice Scalia, I didn't mean to promote you quite so quickly.
Supreme Court Audio : [00:00:33] Thanks for thinking it was a promotion.
Nick Capodice: [00:00:38] Christina, you know how much I love this stuff.
Christina Phillips: [00:00:41] Oh, I do. You and Hannah have done, what, 20 episodes that use archival audio from Supreme Court arguments about that.
Nick Capodice: [00:00:48] Much, maybe more. I cannot tell you how many hours of audio I have downloaded from Oyez in the last five years.
Christina Phillips: [00:00:55] All right. Nick, why do you love oral arguments so much? I known this about you since I started on the show, but I don't think I've ever heard your elevator pitch, so sell me oral arguments as a practice on the Supreme Court.
Nick Capodice: [00:01:08] Okay. One of the first interviews I ever did for Civics 101 was with a guy named Larry Robbins, and he worked in the office of the solicitor general. He had argued cases in front of the Supreme Court. And I asked him like, what's it like when you go in there? And he said, it's basically just a conversation with nine of the smartest people you've ever met in your life and you've got two parties trying to make their case in front of them, almost like you're at a cocktail party. And when we think of the Supreme Court, we always think about these opinions. They write, write these long, winding, official pieces of writing with lots of notes and citations that live in the annals of history. But the arguments are human. The arguments are when the justices talk to each other and the advocates. And I love conversation.
Christina Phillips: [00:01:52] I mean, you've sold me. So the oral arguments are a way to see behind the curtain, so to speak.
Nick Capodice: [00:01:57] Yeah. See, behind the robe.
Christina Phillips: [00:01:59] You get to hear each individual voice. You get to listen to how they ask questions, what kind of tone they're taking.
Nick Capodice: [00:02:05] Yeah. And when it comes to like, entertainment value, the oral arguments of the 19th and 20th century were much more like listening to a professor present their research and methods of an academic paper to other professors.
Christina Phillips: [00:02:17] And how do they sound now?
Nick Capodice: [00:02:20] Well, especially over the last 20 years or so, it started to sound a little more like, Do you know the show Shark Tank?
Christina Phillips: [00:02:29] I do know the show Shark Tank.
Nick Capodice: [00:02:30] It's a lot more like Shark Tank. Christina, you're trying to pitch nine investors on like who's going to invest in their product. And, you know, a couple of them are ambivalent. A couple need to be swayed and a couple are gung ho for You all the way.
Supreme Court Audio : [00:02:41] Right. And that is an assumption that has no basis in this record. The stereotypical an assumption. That's what it is. Not because with all deference Justice Mr. Ryan wants to rely on. Let me finish my point.
Christina Phillips: [00:02:55] And if we're sticking with that metaphor of Shark Tank, are some of the justices kind of like the investors and the way that they have their personalities? And some of them like to talk a lot more.
Nick Capodice: [00:03:04] And some don't say anything and they just glower at everybody. So oral arguments lately have become more like stages for the justices themselves to reveal their personalities. We're also able to better predict how a justice is going to vote on a decision based on what they say during the arguments. We can see how justices treat certain cases and the attorneys advocating in those cases in front of them differently.
Supreme Court Audio : [00:03:28] Let's say hypothetically, though hypothetically, and I know I'm going to get I know all the usual caveats and I accept that. Thank you. Mr. Waxman. I'm pretty sure since you're asking me, I'm not going to like you're not going to like it, but let's assume.
Nick Capodice: [00:03:43] You're listening to Civics 101. I'm Nick Capodice.
Christina Phillips: [00:03:45] I'm Christina Phillips. I'm the senior producer here at Civics 101, stepping in for Hannah this week because she is on a rare and much deserved vacation.
Nick Capodice: [00:03:53] Today we are going to talk about oral arguments in the Supreme Court, specifically what this new era of oral arguments says about the highest court in the land and its role in our increasingly divided political climate.
Tonja Jacobi: [00:04:05] So oral argument is a great thing to study because it's the one part of the judge's decision making process that we can actually observe. Everything else is behind closed doors. They meet behind closed doors. The opinions are just issued, but oral argument we can actually look at at how they interact. And so there can be very revealing of ideology, strategy, etcetera.
Nick Capodice: [00:04:26] This is Tonja Jacobi. She's a professor of law and the Sam Nunn chair in Ethics and Professionalism at Emory University School of Law. So Tonja studies what we can think of as the humanness of the highest court in the land. She looks at how the justices behave within the confines and expectations of the Supreme Court.
Tonja Jacobi: [00:04:43] Traditionally, the there's an expectation that the justices won't really refer to each other in in in pejorative terms, for example, in opinions. But the norms of collegiality maybe are breaking down a little, as I think the court has become more polarized over time or politically polarized, there's there's less of a sort of consensus among the court now than there used to be, just like the rest of society. The Supreme Court is becoming more polarized between sort of left and right. And so and as that's happened, we've seen a lot more of that sort of name calling in opinions. And we've also seen my own research has shown that at oral argument, we've seen real changes in behavior, a lot more interrupting of each other. For instance, justices talking over one another. Behavior like that, that's not as collegial.
Christina Phillips: [00:05:34] And real quick, written opinions are basically the explanations of the justices thinking once they've made a decision.
Nick Capodice: [00:05:40] Yeah, there's like the majority opinion, which is usually authored by one justice with a lot of help from clerks. And it explains the rationale for that majority ruling. Now, if not all the justices are in agreement, there may be dissenting opinions and sometimes there are what's called concurring opinions.
Christina Phillips: [00:05:57] And that's when the justice says, I agree with the decision made by the majority. But there are a few things in that opinion that I disagree with or that I want to expand on. Right?
Nick Capodice: [00:06:05] Yeah. Yeah. Or they came to the same conclusion that the majority made, but through a different legal reasoning.
Christina Phillips: [00:06:10] But that's all on paper and that comes at the end of the case. How do oral arguments help us get there?
Nick Capodice: [00:06:17] All right, here we go. First off, arguments in the Supreme Court bear very little resemblance to a regular old trial. There's no evidence. There's no cross-examination, no jury. They're not deciding the case itself whether somebody's guilty or not. They're deciding whether the laws involved are constitutional. The justices are reevaluating cases that have already been decided in the lower courts. And in order to get the Supreme Court up to speed, the two sides submit briefs. Briefs are short. Thus, the name written arguments that lay out the history of the case and what they think the ruling should be defending the previously made decision or presenting an argument why that decision was wrong.
Christina Phillips: [00:07:01] And there are amicus briefs, too, right?
Nick Capodice: [00:07:03] Right. Those are briefs from the, quote, friends of the court amici. These are legal and policy experts, scholars, people who are able to offer additional context and expertise to each side. And the Supreme Court gets all of these briefs before the oral argument even happens.
Christina Phillips: [00:07:20] So when they walk into oral arguments, they already know a ton about the case.
Nick Capodice: [00:07:23] Yeah, they're not here to learn anything new. This is just a chance to ask each side more about their legal rationale and each side gets one attorney to present its case.
Christina Phillips: [00:07:33] And those attorneys are usually referred to as advocates.
Nick Capodice: [00:07:36] Yeah. When you hear us refer to advocates today, we're just talking about the two attorneys. Sometimes there might be a third or even a fourth person who presents to the justices, but each person presents one at a time.
Christina Phillips: [00:07:47] How long are oral arguments supposed to be?
Nick Capodice: [00:07:49] It's not a hard and fast rule, but it's usually 60 minutes, 30 minutes for one side, 30 minutes for the other. They used to be longer. Sometimes arguments would go days long, but over time the briefs have gotten more detailed and the oral arguments have become more succinct. Sometimes it's not too common. The chief justice may decide that it's going to go an extra day or another hour or something like that.
Christina Phillips: [00:08:16] So the advocates get up there and they just start talking until they get interrupted by the justices.
Nick Capodice: [00:08:21] No, actually used to be that way until about 2019. In that year, the court created a new rule where the advocates were allowed to speak for two minutes straight before the justices could interrupt.
Christina Phillips: [00:08:35] Two minutes does not seem like a very long time.
Nick Capodice: [00:08:38] That may be so, Christina and all the justices have done this. But as an example, I'm going to tell you about Sonia Sotomayor. One time Justice Sotomayor waited a grand total of 11 seconds before interrupting an advocate in Houston.
Supreme Court Audio : [00:08:52] Mr. Chief Justice, and may it please the court. The Social Security appeals counsel dismissal order in this case was a final decision because it marked the agency's last word on petitioner's application for Mr. Houston.
Supreme Court Audio : [00:09:03] If you believe that, is the government instructing its line attorneys to waive exhaustion.
Christina Phillips: [00:09:09] Okay, she didn't even let him finish his sentence.
Nick Capodice: [00:09:12] And aside from this new two minute rule and the general deference that the justices play to the chief justice who introduces the advocates and manages the flow of everything, there aren't any real strict rules about how justices are expected to conduct themselves. Here's Tonja Jacobi again.
Tonja Jacobi: [00:09:30] And I've done some research on how the justices behaved to one another. For example, when they're hearing cases and this is completely unregulated. So there are norms of collegiality that the justices are sort of expected to follow. But but there's nothing written down. The justices always emphasize that they all get along very well, despite that they keep their that they keep their differences to the substance of opinions and not, you know, don't take it out on one another.
Supreme Court Audio : [00:09:59] Fundamental problem that I think Justice Alito is pointing to and you're sort of talking past each other, so maybe I'll explain his view. Strange isn't that I could.Use I can. Use the help. I think I'll explain what his.
Tonja Jacobi: [00:10:16] But sometimes that seems a little bit hard to believe. So if you listen to oral arguments from, say, 30 years ago, they have very boring to be honest. There's a lot of just the advocates talking uninterrupted, the justices occasionally asking questions, and then the advocates would give long answers, a long.
Supreme Court Audio : [00:10:35] Line of cases going back to the inception of the question for enforcement. The court of this court has looked at this language, and this is on Page 122, the third indented paragraph.
Tonja Jacobi: [00:10:50] And and it's not very entertaining. It might be informative, but it's not nearly as entertaining. Whereas now you can hear the justices jumping in, asking a question, and then somebody else, one of the other justices from the other side saying, well, what about this? And interrupting each other and and the chief justice having to step in and say whose turn it is to speak.
Supreme Court Audio : [00:11:12] At the baker is speech. But the the great chef who's like, everything is perfect on the plate. And it's a work of art. It's a masterpiece. Well, Your Honor, you have to confront that issue in every First Amendment case. My my colleagues, I think, go to more elite restaurants than I do. But same here.I think that if if in my dreams, I could go to a michelin, I don't know, one tenth star, I don't know two star restaurant. And you can.
Nick Capodice: [00:11:45] And you can hear this for yourself, gentle listener. You can just go to Oyez, that's Oyez.org. They have recordings of every argument going back to about 1965. We love them. And it's not just the general attitude that is changing. It's what the justices are actually saying when they speak up.
Christina Phillips: [00:12:03] What do you mean?
Nick Capodice: [00:12:04] I mean talking more and asking less.
Christina Phillips: [00:12:07] Okay. So when did this start to shift?
Tonja Jacobi: [00:12:10] A lot of changes happened around 1995 when when the country became more politically polarized and we saw a lot of changes happening at the Supreme Court starting at around that period as well.
Nick Capodice: [00:12:21] A lot of things happened in the 90s. But the big takeaway was that there was more fighting and less compromising between political parties, especially in Congress, harder lines drawn in the sand. Christina.
Christina Phillips: [00:12:33] Yeah, the 90s are definitely one of those times in political history that come up whenever we're talking about partisan divide, especially in Congress, everything from the debt ceiling to the income tax system to impeachment. This was the era with the Contract with America and there were just all these debates about decorum partisanship how Congress should run.
Nick Capodice: [00:12:52] Exactly. And obviously, we cannot draw a straight line from behavior in Congress to the behavior of the justices and the Supreme Court. However, I will say the branches don't exist in their own little independent vacuums. Supreme Court justices are nominated and appointed by politicians. And it was this time period. Christina the 19. 90s that things started to shift.
Tonja Jacobi: [00:13:18] So one thing that really changed. Starting around 1995 is the justices started talking more and more. And and traditionally, oral argument has been limited to 60 Minutes. And so that meant the advocates got to talk less. And and so the justices over that sort of 20 odd year period we're talking about 13 minutes more out of a 60 minute oral argument. So that's about 25%, almost more. And the advocates getting to speak less.
Christina Phillips: [00:13:47] But if the point of oral arguments is for justices to have a chance to ask questions and be persuaded by the advocates, could this just be a case of them being more engaged, more curious?
Tonja Jacobi: [00:13:57] Well, there was zero increase in the number of questions that were asked by the justices during that time. That whole 25% increase in which the justices were talking was taken up by comments made by the justices. And so these conclusory statements that the justices were making were a pretty good indication they were advocating for a particular position rather than inquiring through questions.
Christina Phillips: [00:14:21] Conclusory statements, meaning that rather than asking an advocate to explain their case, the justices were getting their own point across instead.
Nick Capodice: [00:14:28] Yeah, and this could be through posing hypothetical situations, explaining case law or just straight up stating an opinion.
Tonja Jacobi: [00:14:36] And we measured this in the most generous possible way that we could to show that that there were comments rather than questions. So if an entire speech episode, if there was one single question mark, we counted that as a question and still there was no real increase in in questions being asked. All of that additional time was spent making comments. And so conclusions by the justices are rather than asking questions in which they could be persuaded. So that's the first real measure.
Nick Capodice: [00:15:02] Tonja also made a note of when the justices were speaking the most.
Tonja Jacobi: [00:15:07] Another measure is that if you look at who the justices talk to during oral argument, they use up more of the time of the advocate that subsequently when the vote comes, they vote against. So they talk to the advocate that they're going to rule against. They're essentially sort of using up their time to a certain extent. And we showed that you can predict how a justice is going to rule because remember, oral argument comes before the vote. You can predict how they're going to vote based on who they're talking to. And so they spend their time talking to the people that they're going that they ultimately are going to disagree with rather than the people that they agree with.
Christina Phillips: [00:15:45] It almost sounds more like the kind of strategy you would see when you're debating something, a bill in Congress where the politicians are trying to waste someone's time to deflate their argument.
Nick Capodice: [00:15:55] Yeah, just running out the clock. You know, for example, there was a case called Gill V Whitford, which had to do with partisan gerrymandering. And Justice Samuel Alito started his question to one of the advocates this way.
Supreme Court Audio : [00:16:09] Mr. Smith, Can I just say something? Ask you a question about the political science.
Nick Capodice: [00:16:14] And he then proceeds to talk for three minutes.
Supreme Court Audio : [00:16:17] We are going to impose a standard. This three judge court decided this. Now, it's been 30 years since being all right in 2014. It's been finally after 200 years, it's been finally.
Nick Capodice: [00:16:30] And at the end.
Supreme Court Audio : [00:16:31] So this is 2017. It's the time to jump into this. That's a question. Is there a Question there, Your Honor?
Supreme Court Audio : [00:16:38] Yeah, there is a question there. There are about ten of them.
Christina Phillips: [00:16:43] This is like when you make the mistake of asking someone at a party if they've read anything good lately and they proceed to give you the entire plot of a ten book series, and ultimately it sounds like it sucks up a lot of that limited time that's supposed to be about how the law should apply in that particular case.
Tonja Jacobi: [00:17:01] And then not only that, but if you combine these two elements of advocacy and you look at questions and who they're talking to, we showed that the justices are asking questions of the side that they ultimately rule for and making comments primarily to the side that they actually rule against. So what they're doing is they're making statements against the advocate, to the advocate that they disagree with, and then asking questions, giving opportunities to speak to the advocates that they actually agree with.
Christina Phillips: [00:17:34] Okay, so let's imagine I'm an advocate trying to suss out how my case is going. And I notice the other side is getting a ton of questions from one justice. But when I was speaking that same justice spent five minutes waxing poetic on a minute piece of legal history. I might think that maybe things are going better for my opponent when it comes to that justice.
Nick Capodice: [00:17:57] Potentially, yes.
Tonja Jacobi: [00:17:59] And so all of these elements are aspects of what we call judicial advocacy, that the justices come in with a set idea of who they're going to rule for, and they speak for the position that they're arguing for rather than just being open minded and say, okay, here's your chance to convince me, advocate. Tell me the answers to these questions.
Christina Phillips: [00:18:18] Judicial advocacy. Basically, the justices are playing the roles of the advocates themselves. Yeah.
Nick Capodice: [00:18:24] And just sort of to add to this advocacy thing, sometimes the justices seem to come to the advocates aid.
Tonja Jacobi: [00:18:31] One of the things that we identify is the justices stepping in to help an advocate who they think is not getting a point across that they want to get across. And so you have examples where a justice will lay out an entire argument to the advocate who is making that argument. And and then the justice will say something like, is that correct? And the advocate will say, correct.
Nick Capodice: [00:18:58] I have an example of this for you, Dean V United States 2017. And we're not going to go into the facts of the case here. But in short, it was a case about how judges decide mandatory minimum sentences in criminal cases. The advocate Alan Stoller was struggling to explain his point.
Supreme Court Audio : [00:19:14] But the the language that says consecutive also is meant to say that that it can't run with those those those underlying predicate offenses.
Nick Capodice: [00:19:25] Counsel So Justice Sotomayor jumped in and started explaining it herself.
Supreme Court Audio : [00:19:31] You can't impose a sentence simply because you disagree with the guideline.
Nick Capodice: [00:19:37] So then Justice Sotomayor began walking through his argument and how the law should apply in this case.
Tonja Jacobi: [00:19:42] And then she says, correct, Correct, correct. And then Justice Sotomayor says So it's not negating Congress's purpose if a district court gives one day.
Supreme Court Audio : [00:19:51] Correct? One day? Correct.
Tonja Jacobi: [00:19:53] An advocate, Stoller says, I would I would say not. No. Justice Sotomayor. And one day is a day of punishment, isn't it? Alan Stoller No question as to that, Your Honor. Yes. Justice Sotomayor Isn't that your point? And then Alan Stoller says basically it.
Supreme Court Audio : [00:20:07] Is that the we also have to take into consideration.
Christina Phillips: [00:20:11] So Justice Sotomayor is basically feeding Stoller his lines.
Nick Capodice: [00:20:14] Yeah. And it is so obvious. It's so blatant that another justice points it out.
Tonja Jacobi: [00:20:19] Now, later in the argument, advocates stole a confuses Justice Sotomayor with Justice Kagan, which happens sometimes, particularly among the female justices.
Supreme Court Audio : [00:20:28] But as Justice Kagan and I discussed, one day is an additional punishment.
Tonja Jacobi: [00:20:33] And Justice Kagan said something very unusual. She said she's Justice Sotomayor. She was the one helping you.
Supreme Court Audio : [00:20:39] I'm sorry. I'm sorry. She was wrong.
Supreme Court Audio : [00:20:41] And helping you.
Supreme Court Audio : [00:20:43] I'm sorry. I'm sorry.
Supreme Court Audio : [00:20:44] This is the I was the one who wasn't.
Supreme Court Audio : [00:20:48] I got my hands mixed up. I'm sorry.
Christina Phillips: [00:20:51] Wow. I love that she just says that.
Tonja Jacobi: [00:20:53] Now, that is very unusual for a justice to actually acknowledge what is going on, that that Justice Sotomayor was stepping in and engaging in advocacy and explicitly saying this justice is trying to help you. And I am not. I am trying to ask you a question. And so that was a little bit of a breach of the collegiality norms by acknowledging what was actually going on in this case. But Justice Sotomayor went to this great length to spell out this. Advocates argue it for him. And he just kept saying, correct. Correct. No, you were right. Absolutely, Your Honor. Yes, that's right. And any time you see in the transcript, an advocate saying, correct. Yes, absolutely. Yes, that's what I meant. Thank you, Justice Ginsburg.
Supreme Court Audio : [00:21:32] That's precisely correct.
Supreme Court Audio : [00:21:34] That's that's entirely correct, Your Honor. And then you.
Tonja Jacobi: [00:21:37] Know that the justice is doing this particular type of advocacy, this sort of softball questions of saying, let me help you. Is this sort.
Christina Phillips: [00:21:45] Of thing common or kind of a one off scenario?
Nick Capodice: [00:21:48] Tonja said that this was happening a lot. Okay.
Christina Phillips: [00:21:50] So where is this coming from? You mentioned that this shift in the Supreme Court started happening in the 1990s. But I also know from being a person in the world interacting with other people, that there's usually one person at the party who kind of sets the tone. Was there something like that at the Supreme Court?
Nick Capodice: [00:22:08] Yeah. So there was that guy at the party for sure. He was the equivalent of the guest who put a lampshade on his head. This is the justice that elicited more laughs in the Supreme Court than any other.
Tonja Jacobi: [00:22:19] A lot of people used to say that this change came about when Justice Scalia entered the court.
Supreme Court Audio : [00:22:24] I'm Scalia. Yes, sir.
Supreme Court Audio: [00:22:29] Remember that.
Tonja Jacobi: [00:22:30] That he changed the culture of oral argument and jumped in and asked a lot of questions.
Supreme Court Audio: [00:22:34] Conviction illuminates your marriage.
Supreme Court Audio: [00:22:37] Is that.
Supreme Court Audio : [00:22:38] Any?
Supreme Court Audio: [00:22:38] It doesn't have to get a divorce. You just have to get convicted.
Supreme Court Audio: [00:22:43] It's a good deal. I think it's.
Tonja Jacobi: [00:22:47] And and my research shows that that's actually not true. The only thing that changed when Justice Scalia entered the court was this increase in the number of comments rather than questions.
Nick Capodice: [00:22:59] Justice Antonin Scalia, a conservative justice appointed in 1986 under President Ronald Reagan, asked more questions and spoke more often in oral arguments than pretty much anyone else in history. And he used oral arguments to get his own feelings across to other justices. He also wrote more. He has the current record for the most concurring opinions, and he's number two in the number of dissents.
Christina Phillips: [00:23:25] Who's number one?
Nick Capodice: [00:23:26] John Marshall Harlan, otherwise known as the great dissenter.
Christina Phillips: [00:23:30] Ah, the man who made the famous sole dissent in Plessy v Ferguson.
Nick Capodice: [00:23:35] The very same.
Christina Phillips: [00:23:36] Okay. So Justice Scalia is like this huge presence on the court.
Nick Capodice: [00:23:39] Oh, absolutely. He cracked jokes. He made witty little asides. He bantered more with his colleagues and with the advocates.
Supreme Court Audio: [00:23:46] Deviant would be departing - From established norms - There are established norms of violence - Well, I think if we look - Back, I mean, some of the Grimm's fairy tales are quite grim, to tell you the truth.
Tonja Jacobi: [00:23:58] So to the extent that Justice Scalia has changed anything, it was just this first element of advocacy that I talked about increased. But what happened over time is that all of the justices started behaving differently.
Christina Phillips: [00:24:11] It's kind of like you join a friend group where people swear a lot and gradually you start swearing a lot to like in order to be heard in court. These justices have to compete with these other justices who are also jumping in and taking up space.
Nick Capodice: [00:24:24] Yeah, and this is true even of Justice Clarence Thomas, who once went ten years without asking a single question during oral arguments.
Christina Phillips: [00:24:34] As somebody who can't stop myself from asking questions and speaking up, I cannot imagine.
Tonja Jacobi: [00:24:38] He barely spoke at all. He'd go entire years without talking. But what's interesting is that on the few occasions previously when he did talk, he followed the same pattern. You could predict how he was going to vote, because the few times that he did talk, he would be making comments to the advocate that he ultimately disagreed with. So even when the justices don't say much, it's still pretty clear what they're doing, this sort of strategic behavior. Justice Thomas now talks a lot more ever since since the pandemic. And I can talk about why that might be. But we see all of the justices now being very active and very engaged and sort of dueling with each other sometimes.
Nick Capodice: [00:25:17] So we're going to talk about how the new rules around oral arguments have contributed to this change in the dynamic, why that happened, why Justice Thomas is now speaking up more in court than he ever used to, and also why all interruptions are not created equal. But first, we got to take a quick break. But before we go, if you like things like the top ten best jokes made during Supreme Court arguments, you're going to love our newsletter. It's called Extra Credit comes out every two weeks. It's fun. It's free. And you can sign up at our website, civics101podcast.org. We're back. You're listening to Civics 101. We're talking about how over the last couple of decades, Supreme Court oral arguments have gotten a lot more exciting.
Tonja Jacobi: [00:26:04] Sometimes they make sort of snarky comments about all my question wasn't answered. So, you know, answer this question first. Or they'll say things like, you know, well, Justice Alito point was this. But I want you to answer my question first, or they'll actually rebut each other's points.
Nick Capodice: [00:26:21] This is Tonja Jacobi again. She is a legal scholar who studies Supreme Court oral arguments. And just before the break, she told us how starting in the mid 1990s, justices started talking more and advocating more during oral arguments than they had hitherto, and also that things have just felt more lively. There's a lot more crosstalk as entertainment, as entertainment.
Tonja Jacobi: [00:26:41] It's far better for those of us who have to listen to it. But in terms of in terms of informativeness about the actual content of the cases, it's probably much less so. But it's very informative about what the justices are thinking and how they're likely to rule.
Christina Phillips: [00:26:56] I have to be honest, listening to some of these oral arguments, I feel like I would find it really stressful to be interrupted.
Nick Capodice: [00:27:02] All the time.
Christina Phillips: [00:27:04] I think it would be enraging. I don't think I could do it. I would be so annoyed.
Nick Capodice: [00:27:08] You were just so annoyed there when I just pretended to interrupt you. Sorry for the joke interruption there, Christina. I do have to say that interruptions are pretty integral to how oral arguments work. These advocates are rarely going to just be able to speak freely and pause and say, Does anyone have any questions? The justices are the ones running the show. They've got control over the argument.
Christina Phillips: [00:27:30] So I remember that rule we were talking about earlier, where the advocates are allowed to speak for two minutes before the justices can interrupt. But you also said before the break that we were going to talk about why all interruptions are not created equal. And I think I know where you're going here. But are some justices, some advocates more likely to be interrupted than others? Are some more likely to do the interrupting?
Tonja Jacobi: [00:27:59] So back in 2017, I did this first project where I showed that the female Supreme Court justices are interrupted as much as three times as often as the male justices, and they're interrupted both by their colleagues, by other justices, but also by advocates. And it was overwhelmingly by male advocates who were doing the interrupting.
Christina Phillips: [00:28:18] I don't want to hear this, but I kind of actually do want to hear this.
Supreme Court Audio : [00:28:23] There are three unrelated cases. Pardon if court under the Supreme Justice Ginsburg I think it's the operation of the Supreme -He did refuse to say could - But could I get the answer to the question - So may I ask you about the jurisdictional question? There's no there's no there's no compulsion - Well, counsel - I Just want to - I don't want to interrupt your answer to Justice Sotomayor, but just to pick up on a point that you made.
Tonja Jacobi: [00:28:53] And this got a lot of attention and and both Justice Ginsburg and Justice Sotomayor commented on it. The chief justice was asked about this. And subsequently Justice Sotomayor has made multiple statements that the court really changed because of this research and things improved that some of the other some of the male justices apologized to her and the chief got more involved in in controlling who got to speak, sort of referee among the justices. Justice Sotomayor said that things improved.
Christina Phillips: [00:29:26] But does Tonya have any data on this?
Tonja Jacobi: [00:29:29] In terms of justice to justice interruptions? Nothing changed. It's still just as bad as before. The female justices are being interrupted just as much about three times as often as the male justices. So no improvement there. But the other thing we looked at is whether that's true, that the chief justice is intervening more to referee as to who gets to speak. And what we found, interestingly, is that chief justice is refereeing a lot more, but he actually started refereeing earlier than 2017 before we called for him to do it. He was already starting to do it. And there's basically a straight line up in terms of when you graph to show over time. The chief has done this increasingly more since about 2010.
Nick Capodice: [00:30:10] The chief justice is the moderator of the oral argument. They step in if people are talking over each other or if someone needs to be cut off or they do other things just to keep the argument productive. And how they do that is kind of up to them. And what Tonya observed is that Chief Justice Roberts had altered his style of doing things.
Tonja Jacobi: [00:30:32] He became chief justice in 2005. He didn't do much refereeing at all. He began refereeing in around 2010. But interestingly, he refereed more in favor of the male justice. So he would, when there was an interruption, even when the men were interrupting, he'd give the floor to the men for the first few years. And then from about 2015, he started intervening. And and handing the floor to the female justices when they were interrupted.
Supreme Court Audio : [00:30:58] Why don't you deal with Justice Sotomayor's question first and then Justice Alito's?
Supreme Court Audio : [00:31:04] Thank you.
Tonja Jacobi: [00:31:04] And he's doing this considerably more now, you know, around about three times as often. If he's intervening to say when a female justice is interrupted. And I think even the chief justice doesn't know that he's doing this, perhaps or maybe he does, but he doesn't want to say that he's doing it. So that to me is is one of the most interesting results that came out of it.
Nick Capodice: [00:31:24] But there's a little wrinkle in all of this. And that little wrinkle is the Covid 19 pandemic.
Christina Phillips: [00:31:30] Of course it is.
Tonja Jacobi: [00:31:34] During the pandemic, when the justices stopped hearing cases in person and started hearing them by telephone. The chief justice unilaterally also changed the way that oral argument was ordered. During that time, during that pandemic period, and he came out unilaterally. And this is what I mean with some of the other justices weren't entirely happy. Apparently, he decided that the justices would would speak in order of seniority.
Christina Phillips: [00:31:58] Wait, he can do that?
Nick Capodice: [00:32:00] Oh, yeah. Like we talked about in our episode on Supreme Court ethics link in the show notes, the Supreme Court kind of makes its own rules for how it operates. And so Chief Justice Roberts decided that with all the oral arguments happening, virtually everyone would not be allowed to jump in whenever they wanted. He would call on people instead and he would go in order of seniority.
Tonja Jacobi: [00:32:23] And so he would get to ask his own questions first as the chief, and then Justice Thomas would get to speak next uninterrupted without any sort of competition from the other justices. And suddenly Justice Thomas started engaging and asking questions and making comments and behaving like the other justices.
Supreme Court Audio : [00:32:42] Justice Thomas Thank you, Chief Justice. Mr. Stewart It would seem a bit odd, as you suggest, that we sever the exception, but here it doesn't seem.
Tonja Jacobi: [00:32:54] So in terms of Justice Thomas, some people used to say, you know, it was an abdication of responsibility by Justice Thomas not to speak at oral argument, and people would report how he actually looked like he was asleep often at oral argument. He would close his eyes and lean back and just really not engage. And and there were various theories about why Justice Thomas didn't speak at oral argument, but he himself did eventually speak about this. And he said essentially that he was when he was younger and he grew up speaking a dialect that sort of marked him as from a particular region in the south that, you know, and from a less educated background. And he was very self-conscious about it. And so that was one element. But he also was on record saying he just didn't think oral argument was very informative or he thought his his colleagues spoke enough. So he set sort of various mixed messages. Um, what's interesting is that back in the day, 30, 40 years ago, there were other justices who spoke as little as Justice Thomas. So he was arguably sort of a bit of a remnant from an earlier era perhaps. But as I mentioned, he he was his behavior was still predictable in terms of you could predict how he was going to vote based on his strategic behavior at oral argument, even though there was less of it. And when that changed was during the pandemic, when the justices stopped hearing cases in person and started hearing them by telephone. And when they came back, they introduced a new rule that was to have at the end of the dynamic referral period to then have a system where each justice got to speak in turn in order of seniority and to ask questions uninterrupted. And the reason that this was introduced, according to Justice Sotomayor, was because of my research showing that interruptions at the court are not fair. There's now a sort of mixed system where there is this free for all. But then at the end of each oral argument, there's also this exclusive, exclusive period for each justice to ask questions.
Supreme Court Audio : [00:34:56] Council What about. Council? Justice Thomas, It's your turn. Justice Alito. Justice Kagan. Justice Gorsuch. Justice Kavanaugh. Justice Barrett. Justice Jackson. Thank you. Council.
Tonja Jacobi: [00:35:12] And when the court returned to in-person oral argument, there was sort of this seemingly perhaps implicit, perhaps explicit agreement to let Justice Thomas speak first. And so at most oral arguments, the admitted gets two minutes where they are not interrupted by the justices. And then there would be a pause. And Justice Thomas would ask some questions, and only when he'd finish asking 2 or 3 questions, then all the other justices would jump in and then there'd be like a free for all where everybody's sort of talking over each other again.
Christina Phillips: [00:35:45] Again, there's no rule preventing any justice from jumping in at will. But it's held now that all the justices have just let Justice Thomas go first anyway.
Tonja Jacobi: [00:35:54] But yeah, there's this there's this norm now that's developed that Justice Thomas gets to speak first and and only then does everybody sort of compete in a in an open dialog. And so that got Justice Thomas speaking again. But it's it's sort of interesting to think about the dynamics at work there.
Christina Phillips: [00:36:12] I'm curious, how is that new rule, the one where the chief justice gives each justice a chance to ask additional questions at the end affected the dynamic of these interruptions.
Tonja Jacobi: [00:36:23] Since the new rule was introduced in 2021. The the advocates have improved, so the advocates aren't disproportionately interrupting the female justices anymore. So that's a good change. That's. We still find that the male advocates and the female advocates behave differently and that that suggests that different expectations apply to male advocates versus female advocates. Female advocates just don't interrupt nearly as much. And I think that's because the reaction to that sort of misbehavior, like the advocates are explicitly told in the rules of the court not to interrupt, but it's tolerated of the male advocates. And we you have to wonder whether that would be the case with the female advocates.
Christina Phillips: [00:37:07] So the justices haven't really changed their behavior much, with the exception of Chief Justice Roberts refereeing. But the advocates seem to be more aware of who they're interrupting and how often.
Nick Capodice: [00:37:19] Yeah, and with Chief Justice Roberts in particular, this sort of demonstrates his awareness of the public perception of the court, the importance of impartiality and maintaining the court's reputation. Tonja's initial study provided evidence that members of the Supreme Court do not treat every person who stands in front of them or even their own colleagues, other Supreme Court justices with the same level of impartiality.
Christina Phillips: [00:37:47] All right. I'm sold. I feel like this gives me a new interest in listening to oral arguments, especially because they reveal what the justices are thinking before you read their opinions months later. Yeah.
Nick Capodice: [00:37:59] I guess you could say in a sense, we have entered a new era, right, where the justices are starting to reveal parts of their personalities that they'd previously left at the Supreme Court door. And Tonja gave us a warning. Be careful when you start to listen for this sort of thing, because once you hear it, you won't be able to stop.
Nick Capodice: [00:38:40] That is it for oral arguments in the Supreme Court today. This episode was made by Christina Phillips with help from me Nick Capodice and Hannah McCarthy. Jacqui Fulton is our producer. Rebecca Lavoie, our executive producer. Music in this episode by Kevin MacLeod. Jules Gaia 91, Nova Eden Avery, the Fly Guy five IO Llama House. Francis Wells Young Community Mini Vandals. Emily Sprague. Lola Loco, Scott Gratton, Handoo Dixit. That's this music here. I love it. Musicomh Blue Dot Sessions Jazar. Sarah the Instrumentalist and the Man Who I wish scored every Supreme Court argument. Wouldn't that be great? Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.