A New Landscape Unfolds: Supreme Court Oral Arguments In The 2022-2023 Term

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In a term marked by arguments flowing past their allotted times, the justices had quite a bit to say in the 2022-2023 oral argument sessions.  Of course the justices could properly focus their energy on the paltry 59 cases for argument. That number is quite a far cry from 197 arguments the Court heard in 1976 or the 186 arguments the Court heard in 1972. The last time the Court heard more than 100 arguments in a term was in 1997 when the justices heard 102.

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The justices made the most of their talking time this term, but no justice made more of his or her opportunities to take a leading role than newly minted Justice Jackson.  In several ways, no justice has ever jumped into the oral argument fray with such initiative. The numbers show as much.  The looming question is why. Why is there an uptick in the amount of justice-level participation in oral arguments? Why does Jackson have such a large presence? Are measures of oral argument speech even meaningful?

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I looked into some of these questions with the assistance of Jake Truscott, building off of preliminary data from the first part of the term in our SCOTUSBlog post.  The data moving through the entire term consistently shows the same pattern and confirms our hypotheses for oral argument speech from the first part of the term.

What we saw

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In her first term on the Court, Justice Jackson set the new ceiling not only for justice word counts at oral argument for a justice in their first term, but just about for a justice in any term.  This term, no other justice came close to Justice Jackson’s overall word count.  The justices’ word counts by argument are shown below.

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At 1628.4 words per argument, Justice Jackson’s average word count is nearly 600 words per argument more than the next most active justice.  Her total word count of 78,800 words is greater than 28,000 more words than Sotomayor’s 50,100, which was the second most for a justice across this term.  The liberal trio of female justices were the top three most active speakers at oral argument with Justice Gorsuch leading the way for the conservative justices.

Tracked by argument, the justices’ word counts look as follows:

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Justice Jackson led the rest of the justices in overall word count in 26 of the 59 arguments this term. That’s nearly half of the arguments. Jackson spoke the most in the UNC affirmative action case with 3,026 words and in Gonzalez v. Google with 2,967 words.  The only justice to approach Justice Jackson’s high word counts in an argument this term was Justice Gorsuch in Haaland v. Backeen with 2,458 words (Justice Gorsuch has shown a penchant for active interest in Indigenous Law cases in the past).

Even though the liberal justices make up a third of the Court’s membership, with their large contributions to oral argument they spoke nearly as much as the six conservative justices. The following graph tracks the speech by ideological breakdown throughout the term:

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In most cases the two ideological blocs’ word counts track very closely to one another.  The cases where the conservative justices spoke noticeably more included Haaland v. Brackeen, Moore v. Harper, Pugin v. Garland, Groff v. DeJoy, Counterman v. Colorado, and Tyler v. Hennepin County.  These cases deal with a host of important issues, including First Amendment religious liberty concerns and the manner of elections.  The liberal justices spoke considerably more in Merrill/Allen v. Milligan, Glacier Northwest, and in Jack Daniel’s Properties v. VIP Products. While it is difficult to link the importance of these three cases to liberal interests, the Milligan racial gerrymandering case falls within a category of case that the liberal justices would like to impact.

In fact, Jackson had her most notable single instance of speech this term in the Milligan arguments where she spent several transcript pages (as shown below) articulating her interpretation of the race-related implications of the 14th Amendment.

Over Time

The next set of graphs look across the justices’ speech counts since the Supreme Court began labelling the justices’ names on oral argument transcripts in 2004 (here is how they looked previously).  The next graph shows the justices’ average word counts across each term since 2004:

Aside from two instances from Chief Justice Roberts, in 2011 and 2021, Justice Jackson spoke more than any justice throughout a term since 2004 in her first term on the Court.  Even her quite voluble predecessor on the Court, Justice Breyer, never reached such as high of a level of speech since 2004 as Justice Jackson had this term.

Over time, speech at oral argument seems to be a greater concern for the liberal justices than for the conservatives.

Aside from this term and the prior two when the conservatives had a six to three advantage in number of justices, the conservatives only spoke more than the liberals in one other term, 2011, since the 2004 term.  The biggest difference in word counts were in 2016 (liberal over conservative) and in 2020 (conservatives over liberals).  On a justice-by-justice comparison though, oral argument speech appears much more important to the liberal justices than to the conservatives.

What we can take away

Justice Jackson had a historic term. When we take her words spoken this term, which makes up her total on the Court, and compare this with the other justices’ average word counts on a per-term basis, Justice Jackson set a new standard:

This term also set a new standard for oral argument speech. While there was not more total speech for the justices this term going back to 2004, the average justice word count by argument this term is more than for any previous term for this period:

Now circling back to why we see these changes in oral argument participation this term.  One explanation for the higher total level of participation is that several of the arguments took longer than their generally one-hour allotted times.

What about Justice Jackson? Aside from her limited time as a federal appeals court judge, Judge Jackson’s recent professional history was spent as a D.C. District Court judge.  As a district court judge, Jackson heard cases on a panel of one, which might explain her propensity for lengthy segments of speech. The only other current (or recent) justice who has experience as a district court judge is Justice Sotomayor.  Only three other justices confirmed in the 20th or 21st centuries had district court experience, most recently Justice Whittaker who was nominated by President Eisenhower.  Even though it is hard to generalize from such a small sample size, Justice Sotomayor is no slouch at oral argument either and so this training may lend itself to a larger proportion of oral argument participation.

While we could see a drop off in Justice Jackson’s participation in oral argument in her second term on the Court, this potential dip will not likely be significant. In this respect, Justice Jackson has shown herself as a worthy successor to Justice Breyer’s seat.  As to why we see more participation from the justices generally, some of this probably has to do with the post-pandemic format of oral argument with some structured and some unstructured turn-taking.  It will be interesting to see if this new level of participation leads to a greater understanding of the purposes behind oral argument participation, why certain justices engage more (sometimes much more) than other justices, and how oral argument participation helps generate predictions for justices’ votes on the merits.

This post would not be possible without the indefatigable data wrangling and visualization prowess of Jake Truscott (who just completed his Ph.D. in political science).

Topics

Adam Feldman, Courts, Supreme Court