Linda Greenhouse has an interesting article in the New York Times on oral argument and the Roberts Court that points out that the Justices are asking fewer questions and giving litigants more time to answer. The question is, why?
Has Chief Justice John G. Roberts Jr., himself the veteran of 39 Supreme Court arguments as a lawyer, shared with his colleagues the perspective from the other side of the bench, or maybe even laid down some new rules?
The latter theory is unlikely; the court’s ethos calls for signaling rather than rule-making. To the extent that the new chief justice is leading by example — and there is no doubt that he is in charge of the courtroom — he is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.
This is just speculation on my part — I have only seen one day’s argument with the new set of Justices, and didn’t notice a difference in the argument — but I wonder if there is an easier explanation. When the same set of nine Justices had been on the bench together for eleven years, the dynamics were well-settled. Everyone knew who the swing vote was, and how other Justices might react to a given line of questioning. With new Justices, there is much more uncertainty. And with uncertainty comes fewer questions. That’s one theory, at least.