A Look Back at Court’s Arguments on Health Care, Laugh Count Included
The Supreme Court’s momentous decision on the fate of President Obama’s health care lawis expected Thursday, and it is likely to be dry, sober, weighty and self-conscious about its place in constitutional history.
The arguments in the case, held exactly three months ago, were something else entirely. They illuminated the work of a court that takes a distinctively loose and even lighthearted approach to adjudication, one its decisions generally mask. A timely new study, based on an impressively detailed review of the transcripts and audio recordings of the 6 hours, 14 minutes and 7 seconds of arguments in the case, revealed an exceptionally garrulous and jocular bench.
Justice Stephen G. Breyer alone spoke for more than half an hour, and Justice Sonia Sotomayor was close behind, at just 30 seconds shy of a half-hour, according to the study, which was conducted by Ryan A. Malphurs, a litigation consultant, and L. Hailey Drescher, a graduate student at the University of North Texas. Collectively, the justices spoke for 162 minutes, or 43 percent of the time.
It does not take much to get a laugh at the Supreme Court, and the spectators in the courtroom were particularly generous during the health care arguments. There were 63 episodes of public laughter, or about 10 laughs per hour.
The court considered four issues over three days, each apparently funnier than the last. “It was interesting to see the level of humor ramp up,” Mr. Malphurs said, with “10 instances in the first oral argument, 13 in the second, 16 in the third, and 24 in the fourth. They may have been grown giddy from oral argument overload.”
There came a point, shortly after Justice Antonin Scalia invoked the comedian Jack Benny in the last argument, that Chief Justice John G. Roberts Jr. stepped in. “That’s enough frivolity for a while,” he said.
The justices knew they were under extraordinary scrutiny, Justice Ruth Bader Ginsburg said on June 15, in freewheeling remarks to the American Constitution Society, a liberal legal group.
“Some have described this controversy as unprecedented,” she said. “They may be right if they mean the number of press conferences, prayer circles, protests and counterprotests going on outside the court while oral argument was under way inside.”
“No contest since the court invited new briefs and arguments in Citizens United,” Justice Ginsburg added, “has attracted more attention in the press, the academy and the ticket line outside the Supreme Court, a line that formed three days before the oral arguments commenced.”
The justices’ reaction to all of that attention was to conduct business as usual, starting two of the arguments with the announcement of inconsequential decisions and then conducting the arguments themselves in characteristically informal fashion.
Justice Scalia spoke more often than any other member of the court, but in shorter bursts, for a total of 21 minutes. That put him in third place, behind Justices Breyer and Sotomayor.
Chief Justice Roberts and Justice Ginsburg tied for fourth, down to the second. They each spoke for 1,169 seconds, or a little more than 19 minutes apiece. A review of the audio recording with the aid of a stopwatch also revealed that Justice Clarence Thomas spoke, as is his custom, for zero seconds.
Justice Scalia was responsible for 26 laughs, easily outpacing his colleagues. Justice Ginsburg, who noted in her recent remarks that she has been called the least funny justice who talks, was good for two laughs.
Justice Ginsburg suggested that she might have liked to talk a little more. “Argument often proceeds at a clip so rapid,” she said, that “it is sometimes hard to get a word in edgewise.”
The study from Mr. Malphurs and Ms. Drescher also showed that Solicitor General Donald B. Verrilli Jr., whose performance received withering reviews, was interrupted mercilessly. He was cut off 180 times or, on average, every 22 seconds. He was interrupted after speaking for 10 or fewer seconds more than 40 percent of the time.
The lawyers who argue before the court can seem incidental to the main purpose of the occasion, which the justices often say is mostly an opportunity to address one another. That view seems to be a modern one, though earlier justices have also questioned the contributions made by lawyers at oral argument.
“The acme of judicial distinction,” Chief Justice John Marshall said of presiding over oral arguments, “means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.”
During the health care arguments, it fell to the current chief justice to play referee and timekeeper, if not umpire. On nine occasions, Chief Justice Roberts chose between two justices trying to ask questions simultaneously, helped lawyers return to points they were making and parceled out increments of additional argument time.
The courtroom has lately been alive with anticipation. There was a rumor, for instance, that the health care decisions would come down on May 24.
“Rumor followers attended the session anticipating announcement of the momentous decisions,” Justice Ginsburg said. “They got their just desserts. They learned, from the only decision announced from the bench that day, that section 8(b) of the Real Estate Settlement Procedures Act does not prohibit all unearned fees.”
There was, actually, a second decision announced that day. But who’s counting?