Tony Mauro’s Christmas Day report about Chief Justice Roberts in the Legal Times included the following fun bit of trivia:
According to a new study by University of Kansas professor Lawrence Wrightsman, the number of words advocates are able to speak before being interrupted by a justice has jumped nearly 50 percent under Roberts. That trend has been attributed to the retirement in January of Justice Sandra Day O’Connor, who was usually first with a question. But Wrightsman’s numbers indicate the increase started even while O’Connor was on the bench. Wrightsman is the author of a new book, The Psychology of the Supreme Court.
May I Interrupt . . .
Median number of words spoken by Supreme Court advocates before a justice asks a question.
•2003-2004 term (Rehnquist presiding) 111 82
•2004-2005 term (Rehnquist or Stevens presiding) 111 77
•2005-2006 term (Roberts presiding, O’Connor on Court) 137 84
•2005-2006 term (Roberts presiding, Alito on Court) 155 116
•2006-2007 term (Roberts presiding, through December) 160 121
Source: Lawrence Wrightsman, University of Kansas
Notes: During the 2004-2005 term, Justice John Paul Stevens presided during periods of Chief Justice William Rehnquist’s illness. Chief Justice John Roberts Jr. presided during the entire 2005-2006 term, and Justice Sandra Day O’Connor served as an associate justice until Jan. 31, 2006, when Justice Samuel Alito Jr. succeeded her.
It would be interesting to do a similar analysis of CAAF arguments — though the audio links that would facilitate such a study are limited to the current term.
BUT one shouldn’t draw the wrong implication from this study. I have always believed, as my law school appellate advocacy text recommended, that an advocate should REJOICE when a judge asks a question. That gives the advocate insight into the judge’s concerns, thereby allowing the advocate to target his or her argument to what may prove to be the determinative issue for that judge. And if Justice O’Connor, of all people, wanted to highlight her concerns, well I might be tempted to start my argument by asking her if there was anything in particular on her mind.
How many cases are won on the basis of a canned oral argument opener? Not many, I’d wager. How many arguments are won when the advocate manages to strike up a discussion with the judges? I’d be willing to bet a good many more. (Of course, I wouldn’t be willing to bet with the Super Muppet or the Columbus Clipper, since that would violate a Navy Reg against gambling with junior officers. And I couldn’t bet with Guert, either, since the good Commodore would then be violating the Navy Reg by betting with one of his juniors.)
At oral argument, a judge’s silence is far from golden.