What seemed like an innocuous comment during oral arguments on October 3, 1994, by Richard Seamon, attorney for the Department of Justice in the case of United States v. Shabani led to lengthy retort. Seamon, prepared to end the arguments stated, “Unless the Court has further questions, I have nothing further.” Justice Breyer in his first oral argument had yet to speak at the 42-minute marker finally chimed in with “I do have a question, actually.” Breyer then launched into a 219 word question/statement with a short follow up to end the morning argument that day. Little did many expect Breyer to be the most outspoken justice in oral arguments for the latter part of the 2000-teens.
Even Justice Breyer though could not hold a candle to Justice Jackson in their respective first eight oral arguments. While Breyer spoke less than 4,000 words Justice Jackson spoke over 11,000 during the same number of arguments. Justice Breyer, who was known for lengthy hypotheticals in oral argument did not start out with as voluble a speaking paradigm. In fact, Breyer started out much more reserved. In his first term along with the first two oral argument sittings in his second term had Justice Breyer reached a point where he was as active in oral argument as Justice Jackson has been thus far on the Court (she has sat through one term and two sittings so far)? This post delves into this question of how Justices Jackson’s oral argument behavior compares with that of her predecessor on the Court Justice Breyer.
Breyer and Jackson
Justice Breyer has some of the lengthiest speaking turns for a justice in the recorded history of Supreme Court oral arguments. His 579-word utterance in Torres v. Texas Department of Public Safety is the longest turn for a justice in almost the last two decades. He has the next highest word count for an utterance as well with 547 in Republic of Sudan v. Harrison. Justice Jackson has the third longest utterance during this period with 534 in Allen v. Milligan. Justice Jackson’s lengthy word counts do not stem from the lengthiest utterances in each case. Rather, Jackson has consistent protracted utterances that are far longer than those of her colleagues.
Justice Breyer had a particular form to his longer utterances which generally was a hypothetical. His lengthy utterance in Torres began:
“Well, I — you’ve given a good answer, but I want you to answer more, and I’ll focus it. I’ll start with the assumption, which you don’t have to answer. This has the potential of being a pretty important case for the structure of the United States of America. The war power is not copyright, and it is not the Indian Commerce Clause. It is, and, you know, as Lincoln said, will this nation long endure? We hope it is never necessary, but maybe that question will come up, okay? You see why I think it’s very important? Okay…”
Below is a copy of the full utterance:
Justice Breyer loaded his utterances up with multiple factors and often asked for potential policy outcomes as well as for the attorneys’ takes on how the Court should fashion relief in each case.
Justice Jackson’s lengthy talking turns at oral argument are generally instances where Jackson takes on the role of educator as she did with her dissection of the history of the 14th Amendment during her lengthy talking turn in Allen v. Milligan. Another big difference between the two justices though is the extent of their oral argument engagement. In that respect Justice Jackson is in a league of her own, even if we must base this assessment on one term and two argument sittings of data.
Numbers in Context
To show Jackson’s unique place in the modern history of oral argument practice we can look at two different angles – one comparing her with Breyer and the other, revisiting Jackson’ relative participation with her colleagues on the Court. The first graph covers the most active justices during the 1994 Term arguments, Justice Breyer’s first term on the Court, and the 2022 Term arguments, Justice Jackson’s first term on the Court.
First of all, there were 82 Supreme Court opinions based on argued cases in the 1994 Term. By contrast there were 59 arguments leading to opinions in the 2022 Term. This gave the justices in 1994 many more talking turns and hours of oral argument. The leading speaker that term was Justice Scalia with over 86,000 total words and over 902 words per argument that term. The next most active speaker was Justice Ginsburg. Justice Breyer spoke considerably less than both of these justices in 1994 with under 59,000 total words and almost 679 words per argument.
Even with significantly fewer arguments, Justice Jackson outspoke the Justices in 1994 by over 10,000 words with 97,345 words or over 1390 words per argument in the 2022 Term, her first term on the Court. The next most active speaker, Justice Sotomayor spoke nearly 40,000 fewer words for the term and over 400 fewer words per argument.
To put Justice Breyer’s oral argument activity for the 1994 Term and beginning of 1995 Term in context, below is a plot of daily oral argument word counts for Justice Breyer, Justice Scalia who spoke the most that term, and Justice Kennedy who spoke the least aside from Justice Thomas who did not speak at all during most the arguments.
Justice Breyer spoke more than Justice Scalia in a few arguments but also had several instances where he did not speak at all. His word counts are generally higher than those for Justice Kennedy even though Justice Kennedy was a more consistent speaker in terms of total arguments with participation.
We can contrast this with Justice Jackson’s daily word counts compared with those from the second and third most talkative justices during the last term and beginning of this term.
Justice Jackson spoke more than the other justices in almost every argument day so far in her short time on the Supreme Court. The peaks of her word counts are much higher than the other justices showing that while she has consistently high word counts, her averages are based on high peaks and respective valleys. This leads to the possibility that Jackson either places higher value on contributing in certain arguments or that something enhances her engagement in some arguments more than others as the 14th Amendment point obviously was critical to her in Allen v. Milligan.
Comparisons
How do Justice Breyer and Justice Jackson’s contributions to oral argument look next to each other? If we plot Justice Breyer’s daily argument word count in his first term along with the first two sittings of his second term along with Justice Jackson’s counts for the same amount of time we get the following output.
Justice Jackson’s daily word counts are considerably higher than Justice Breyer’s even though Justice Breyer had many more days with multiple arguments in 1994 and 1995 than Justice Jackson had in 2022 and 2023 so far.
Justice Breyer was not the loquacious justice he turned out to be during his first term on the Court. After years on the bench, Justice Breyer was often noted as the most active justice at oral arguments though:
“In keeping with conventional wisdom, Justice Breyer is the most talkative of the Justices. His median argument session includes almost 840 words. This suggests that, even though there are ten other participants in the courtroom with him, Breyer dominates in terms of the length of his utterances.” [Johnson and Black, 2017)
Perhaps he picked up his engagement as he spent more time on the Court. The next graph shows his average argument word counts for the 2010 through 2021 Supreme Court Terms and juxtaposes this with Justice Jackson’s counts so far on the Court.
Justice Jackson’s numbers dwarf Justice Breyer’s, and Justice Breyer was no fly on the wall. This comparison shows that even in Justice Breyer’s most active term since Justice Kagan joined the Court, Justice Jackson still averaged over 400 more words than Justice Breyer per argument.
Parting Thoughts
The gist of this post is twofold. First Justice Jackson is something like we’ve never seen in oral argument. While she doesn’t significantly diminish the participation of her colleagues, she is by far the most active justice at oral argument. If folks (including myself) were interested in seeing whether Jackson was a true heir apparent of Justice Breyer’s seat with respect to his oral argument engagement, then this comparison shows that she is leaps and bounds ahead of him. This should dispel any thoughts that Justice Jackson was merely picking up where Justice Breyer left off. This post is more observational than explanatory in that it does not speak to the value of more speech or how it affects interpersonal communication on the Court and with attorneys. This does help paint a picture though of what oral arguments have looked like since the beginning of last term and how they may look for the foreseeable future as long as Justice Jackson is driving the justices’ participation.
Thanks to Jake Truscott with for helping with the data in this post.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on Twitter @AdamSFeldman and on LinkedIn here.
