To Ask or Not to Ask

In last week’s Legal Times, Tony Mauro discussed then D.C. Circuit Judge Roberts’ analysis of a method of predicting Supreme Court case outcomes and how it applies to Roberts as a Supreme Court Justice:

Using oral argument transcripts, [Roberts] tallied the number of questions justices asked of advocates in a significant sampling of cases.

Eighty-six percent of the time, Roberts reported in a talk to the Supreme Court Historical Society, the lawyer for the party that ultimately lost had gotten the most
questions.

“The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions.”

As it turns out, Chief Justice Roberts is the justice on the Roberts Court who is proving this hypothesis more than any other:

[I]n the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25
5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored.

So, what does this mean for litigators arguing before the Supreme Court? There are a couple of possibilities:

One could argue that [Roberts] is giving that side more opportunities to convince him -- and they fail. But [University of Kansas professor Lawrence] Wrightsman thinks it suggests that Roberts comes to the argument with a ‘predisposition.’ He adds, “I don't want to say he has already decided the case, but he is setting a higher standard for one side than for the other.”

We wonder what this all means about Justice Thomas….