William_T._Bianco,_David_T._Canon]_American_Polit

512 Chapter 14Chapter 14 || The CourtsThe Courts

left on the clock. We found only two instances in which a justice cut someone off in

midsentence after the person had gone over the half-hour limit. We updated the

analysis for the Roberts Court, examining all 74 cases argued in the 2009 calendar

year. Roberts was not much of a stickler for adhering to the time limits: nearly 60

percent of oral arguments went past their allotted time (most by only a minute or two),

13.5 percent were exactly one hour, and 27 percent were under an hour. Again, only 2

of the 74 oral arguments ended with an attorney being cut off in midsentence by the

chief justice. Thus, while the Court tries to encourage attorneys to stay within the time

limits, it is not as draconian as some anecdotes imply.

Some lawyers may not use all their time because their train of thought is interrupted

by aggressive questioning. Transcripts reveal that justices jump in with questions

almost immediately and some attorneys never regain their footing. The frequency

and pointedness of the questions vary by justice, with Justices Breyer, Roberts, and

Sotomayor being the most aggressive on the current Court. Justice Thomas went more

than 10 years without asking a single question but broke his streak in 2016, perhaps

feeling the need to fill the void created by the death of Justice Scalia.^51 Cameras are not

allowed in the courtroom, so most Americans have never seen the Court in action—

although a small live audience is admitted every morning the Court is in session. If

you are curious about oral arguments, audio recordings of every case since 1995 are

available at http://www.oyez.org.

Conference

After oral arguments, the justices meet in conference to discuss and then vote on the

cases. As with the initial conferences, these meetings are conducted in secret. We

know, based on notes in the personal papers of retired justices, that the conferences are

orderly and structured but can become quite heated. The justices take turns discussing

the cases and outlining the reasons for their positions. Justice Thurgood Marshall

described the decision-making process in conference and the need for secrecy as

a continuing conversation among nine distinct individuals on dozens of issues

simultaneously. The exchanges are serious, sometimes scholarly, occasionally brash

and personalized, but generally well-reasoned and most often cast in understated,

genteel language.... In other cases, a majority of justices start down one path, only

to reverse direction.... This is the kind of internal debate that the justices have argued

should remain confidential, taking the position that only their final opinions have legal

authority. They have expressed concern that premature disclosure of their private debates

and doubts may undermine the Court’s credibility and inhibit their exchange of ideas.^52

Opinion Writing

After the justices indicate how they are likely to vote on a case, if the chief justice is

in the majority (which is most of the time), the chief justice decides who will write

the majority opinion. Otherwise, the most senior justice in the majority assigns the

opinion. Several considerations determine how a case will be assigned. First, the chief

justice will try to ensure the smooth operation of the Court by trying to equalize the

number of cases across the nine justices. John Roberts has been especially careful to

spread out the workload evenly.^53 A second factor is the justices’ individual areas of

expertise. For example, Justice Harry Blackmun had developed expertise in medical

The late justice Scalia was the

funniest justice. According to one

study, he prompted

77

rounds of laughter in the 2004–2005

term, which made him 19 times

funnier than his friend Justice

Ginsburg.

Source: thedailybeast.com

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