“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”
The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.
Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.
“First of all, there are excuses for it,” Chief Justice Roberts said.
“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”
Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”
In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”
Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.
“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.
Chief Justice Roberts gave another reason for the warming trend.
“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”
Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.
“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”
It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.
“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”
There seems to be a consensus that the justices should moderate their volubility.
“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”