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Today's Supreme Court Args: Meaner, Funnier, Better Prepared

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By Casey C. Sullivan, Esq. on March 28, 2016 6:58 AM

Supreme Court oral arguments ain't what they once were -- and that's not exactly a bad thing. According to a recent study comparing oral arguments in the contemporary Court with their mid-century predecessors, today's Supreme Court justices are more likely to crack jokes, more willing to speak harshly, and better prepared than they were 50 years ago.

Let's take a look at how things have changed.

What a Difference Five Decades Makes

The study comes our way via Amanda Frost's recent survey of academic highlights over at SCOTUSblog. "Does oral argument matter?" she asks. The answer: Sort of! Maybe! But if the studies aren't perfect for explaining the importance of oral arguments, they do point out some interesting trends.

One of the more interesting studies, "Interruptions in Search of a Purpose," by Barry Sullivan and Megan Canty of Loyal University, was published a few months back in the Utah Law Review. Sullivan and Canty compare oral arguments from the 1958 to 1960 terms with those from the 2010 to 2012 terms.

In those 50 plus years, arguments have changed in important ways, they find. First, justices today seem to be more on top of the cases and more willing to dominate the arguments:

Among other things, the current justices are far more talkative than their predecessors. That may be the case because the justices are better prepared (having more clerks and a smaller caseload) and therefore know more about each case, have had the opportunity to form an opinion as to the best outcome, and have a strong incentive to talk-despite the shortening by half of the time available for oral argument.

Indeed, the justices are much more talkative than in the past. Despite shorter oral arguments, Supreme Court justices increased their total words per case by 23.7 percent.

The increased wordiness of today's justices correlates to a decrease in words spoken by counsel. Today, lawyers arguing before the Court use 45.8 percent fewer words than 50 years ago, Sullivan and Canty found.

Oral arguments have changed in tone as well. As Sullivan and Canty write:

By contrast, the Justices in the newer cases interrupted early, often, and directly. Sometimes they did so to clarify an argument. Often they spoke strategically, witht he fairly obvious intention of influencing colleagues by bolstering (or deflating) certain arguments.

And while the justices spoke more frequently with "apparent harshness" towards counsel, they also brought more levity to the Court.

Talkative, but Funnier Too

Another study, released five years ago, highlighted the increased use of humor on the Court. Some of it is unintentional, like Justice Breyer's discussion of his underwear, or a litigator's accidental use of bro-speak.

Here's Justice Breyer, discussing strip searches in oral arguments for Safford Unified School District v. Redding:

You know, we did take off our clothes once a day -- we changed for gym. OK? And in my experience too, people did sometimes stick things in my underwear. Well, not my underwear.

And here's a more recent example, a bro-y exchange between DOJ attorney Zachary Tripp and Chief Justice Roberts in last month's Kingdomware Technologies v. United States arguments:

Tripp: Now the goals are in the range of 10 to 12 percent, and in most years we're crushing those goals, right? We're beating them, even on the FSS...

Chief Justice Roberts: When -- I'm sorry. When you say you're crushing the goals, that means you're meeting them?

And, of course, there are the sarcastic quips, one-liners, and intentional attempts at humor. When it comes to those jokes, the late Justice Scalia was king, earning more laughs than any of his colleagues.

So indeed, oral arguments have changed greatly from 50 years ago. We'll leave it up to you to decide if that change is for the better.

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