The Ghost of Felix Frankfurter

This week the Supreme Court heard the final oral arguments of the 2017-18 term.

The attorneys who argue before the justices have never had it easy. One of the toughest questioners in history was Justice Felix Frankfurter, who served on the Court from 1939 to 1962. A former Harvard Law professor, Frankfurter used oral argument as an opportunity to treat “lawyers before the bar as students, heckling them as he had done in class,” the historian Melvin Urofsky observed in a 1988 Duke Law Journal article. On average Frankfurter spoke 1,300 words per case, a ferocious verbal outpouring that far exceeded that of any other justice in history, at least as far back as oral argument records exist.

But is oral argument an even more trying experience today? And are the justices’ questions and comments more ideologically freighted than in past eras?

The New Oral Argument: Justices as Advocates

The answer to both questions is yes, according to a provocative and outstanding new article by Prof. Tonja Jacobi and Prof. Matthew Sag. Their article, which is titled “The New Oral Argument: Justices as Advocates,” is forthcoming in the Notre Dame Law Review. The authors contend that, in the last quarter century, the justices have grown much more willing to interrupt, challenge, lecture, and even advocate at oral argument.

Although previous studies have also found that the Supreme Court has become a much hotter bench (such as an important 2015 study by Barry Sullivan and Megan Canty, “Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12,” published in the Utah Law Review),  Jacobi and Sag argue that the change is even more pronounced than previously understood. In a quantitative analysis of the period from 1960 to 2015, covering over 6,000 cases and 1.4 million separate speech episodes, they found a 22% increase in the amount of oral argument time that the justices themselves consume with questions, interruptions, and comments.

The change is so profound that when a justice listens silently and politely to the advocates at oral argument, it attracts ridicule and public condemnation. For example, Justice Clarence Thomas’s reticence on the bench has generated scrutiny from the national press and harsh criticism from some legal analysts. In a 2014 New Yorker piece, Jeffrey Toobin called Thomas’s silence during oral argument “disgraceful” and “downright embarrassing, for himself and for the institution he represents.” Yet, it once was common for many justices not to speak up during oral argument. As Jacobi and Sag explain, “for most of the Court’s modern history, judicial silence was quite ordinary; what is unusual is not that Justice Thomas is silent, but that now he is the only justice who is silent.”

A Hot Bench

The Jacobi-Sag article provides many specific examples of the changed nature of oral argument. For instance, they describe a a short but telling November 2017 exchange between Chief Justice John Roberts, Justice Stephen Breyer, and Scott Gant (counsel for the petitioner) in the case of Patchak v. Zinke. The exchange began when Breyer asked Gant, “So why don’t you bring your case in state court?”

Gant: “I would have to think about whether we could do that.”

Breyer: “Why?”

Roberts: “Well, can the tribe be sued in state court?”

Breyer: “Yeah, general jurisdiction.”

Roberts: “Can the federal government be sued in state court?”

Breyer: “You can. Yeah.”

Roberts (directing the question to Gant): “I’m asking you.” [Laughter]

Gant: “I don’t want to get in the way of a good discussion.” [Laughter]

To be sure, the charge that the justices sometimes act more like advocates than judges is an old one. In Prof. Urofsky’s Duke Law Journal article, he describes a 1960 exchange between Justice William O. Douglas and Justice Frankfurter that quite resembles the 2017 exchange between Roberts and Breyer. Douglas and Frankfurter frequently battled during oral argument. As Urofsky writes, no one ever nominated Douglas “for a pleasing personality award.” Frankfurter’s overbearing manner at oral argument made him a perennial target of Douglas’s ire. For example, whenever an attorney did poorly during oral argument, Douglas would pass a note to Frankfurter that said: “This chap led your class at Harvard Law School.” 

In one particular 1960 case, Douglas kept interrupting Frankfurter to offer the attorney at the bar answers to Frankfurter’s questions. As each of his questions was preemptively answered by Douglas, Frankfurter grew ever more frustrated.

Livid and exasperated, Frankfurter finally said to the attorney, “I thought you were arguing this case.” Not missing a beat, the attorney retorted: “I am, but I can use all the help I can get.”

Historical anecdotes aside, the statistics that Jacobi and Sag provide in their article make a compelling case that a change has indeed occurred in the quantity and nature of the interruptions. The result is a much more contentious and polarized oral argument process than in previous generations.

One of the study’s most striking findings is that the justices today do not ask more questions than the justices did in the 1960s. But the interruptions last much longer, which means that they consume a larger percentage of oral argument than ever before. Moreover, Jacobi and Sag argue that the justices are not only asking longer questions, they are making editorial comments and staking out ideological positions. It’s as though the ghost of Felix Frankfurter has come to dominate the oral argument process. 

Don't Blame Scalia

Crucially, however, Jacobi and Sag show that the change did not result from the personality of any individual justice. One might have suspected that the change in oral argument practices dated to the arrival of Justice Antonin Scalia in 1986. One of the best writers and quickest wits on the Court, Justice Scalia nevertheless could also be extremely abrasive during oral argument and in his dissents.

For example, Scalia penned a famously scathing dissent to the majority’s ruling in the 2008 case of Boumediene v. Bush, which held that detainees at Guantanamo Bay, Cuba have habeas corpus rights under the U.S. Constitution. In his dissent, Scalia wrote:

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”

Many have claimed that Scalia’s bare-knuckled approach transformed oral argument and played a key role in the Court’s polarization. The journalist Nina Totenberg, for example, wrote in 2016 that when Scalia “came to the court, the justices asked few questions during oral argument. And Scalia, the junior justice, jumped in, pummeling lawyers relentlessly with questions. Soon other justices took a more active approach to questioning, so that most lawyers could get less than a sentence out of their mouths before being interrupted.”

But the Jacobi-Sag study doesn’t bear out Totenberg’s recollection at all. First, they find that the change in the Court’s conduct at oral argument began in 1995, almost a decade after Scalia took the bench. Moreover, Jacobi and Sag contend that it correlated with developments outside the courtroom. Instead of personality dynamics leading to changes in oral argument, the study finds that the accelerating polarization of Congress and the country in the mid-1990s was the driving force. The more contentious that American politics became, the more contentious the Supreme Court’s oral arguments became. 

Second, and perhaps most intriguing of all, the data indicates that the behavior of the liberal justices has changed even more than the conservative justices, as the liberals engage in longer interruptions than the conservatives. Jacobi and Sag explain that “[w]hile 1995 marks a significant upward shift in activity by the conservative justices, moving from 240 words on average to 340 words on average, there was a much more dramatic jump in activity by the liberals at that time, increasing from 224 words to 549 words on average.” They posit that the liberals became more active as a result of both the Court’s and Congress’s shift to the right in the 1990s.  

A Less Polarized Court than It Appears?  

The only caveat I would add to the superb Jacobi-Sag study is that the Supreme Court’s polarization in high-profile cases does not reflect the Court’s docket as a whole. 

Indeed, it’s important to keep in mind that only a minority of Supreme Court cases result in deep ideological divisions on the Court. According to SCOTUSblog’s latest statistics, 5-4 rulings represent only 20% of the total opinions since 2005 (through the 2016-17 term). 

Moreover, even that number overstates the extent of ideological division, because only 74% of those 5-4 splits occurred along the familiar conservative-liberal axis. In other words, only about 15% of the Supreme Court’s rulings since 2005 have divided the justices along ideological lines. Apart from the most high-profile cases, the justices are not nearly as polarized as press coverage of the Supreme Court might suggest.

But when it comes to the roughly 15% of cases that divide the justices along ideological lines, the Jacobi-Sag article makes clear that polarization has deeply influenced how oral argument is conducted. In the process, the article demonstrates the enormous value of quantitative methods in legal analysis.

It’s a great work of scholarship, one that is quite interesting and important, and well worth the reader’s time. You can find the article on SSRN here.

Comments

[Anthony Gaughan]

I originally misidentified Scott Gant as counsel for the Interior Department. He is actually counsel for the petitioner, David Patchak. I've corrected it above. I'm grateful to Dan Lewerenz for pointing it out!

[Zvi S. Rosen]

It's kind of jarring to read a transcript of oral argument from before 1939, for instance this one: https://books.google.com/books?id=ODtZAAAAIAAJ&pg=PA53#v=onepage&q&f=false

The justices barely spoke, although that case is a somewhat extreme example.

[Anthony Gaughan]

Thank you for your comments, Zvi, and the link to the 1936 Associated Press v NLRB case. It's amazing how little the justices said during the long oral arguments. Chief Justice Hughes seemed mostly concerned with time management. But he let them argue over two days, which is remarkable. Thanks again.

[Zvi S. Rosen]

You're welcome! I've been working on tracking down more of the older transcripts, but they tend to be a little underwhelming, because the Justices didn't have as much to say. I think this case, with John W. Davis arguing, might also partially be an illustration of how the Court regarded him.