Oral argument as theater

This is the third in a series about the oral argument in Shelby County v. Holder.

I've discussed the irrelevant questions raised by justices on the Supreme Court at oral argument. Why do they do it?

Some have characterized the current Court as a "hot bench," or a group of justices who ask a number of questions during oral argument. (At a recent event at Harvard Law School, Dean Martha Minnow raised this point to Justice Clarence Thomas, known for his silence on the bench, and he expressed some uncertainty as to what that term meant.)

And it's an era when observers are increasingly obsessed with the Court, ranging from highly-specialized appellate practices, to exorbitant bonuses for Supreme Court clerks, to media pursuits of clerks' families to glean how a justice might rule, to law schools boasting each time a justice speaks there, to toy figurines or baseball cards of the justices, to obsessive chronicling of the justices' hiring. It's no surprise, then, that cameras in the courtroom is another manifestation of this obsession, one that circles around oral argument. Another obsession at the Court include counting up the number of times each justice cracks a joke that yields laughter.

It's little surprise, then, that the justices on the Court take their cues from the culture surrounding them (and here my armchair psychiatry kicks in)--a quasi-celebrity culture that rewards brash and bold bits that cater to core constituencies. Oral advocacy is no longer tasked solely to the counselors before the Court; the justices themselves can inject one-liners and miscellany that appease those inclined to support a justice's position.

And, I posit, a part of this is generational--which means the situation will get worse. Consider the examples I raised in Shelby County v. Holder. I cite five justices--and four of them (Roberts, Alito, Sotomayor, and Kagan) are the newest justices, all confirmed since 2005, all under 65. Three other justices (Kennedy, Ginsburg, and Breyer), confirmed before 1995 and nearly 75 or older, have been less prone to ask irrelevant questions. (Justice Scalia being one outlier, older and more inclined to ask provocative or irrelevant questions; Justice Thomas being the other, inclined to silence on the bench.) If I may make a slightly more generalized comment, this is fairly consistent with how the questions proceed at argument: Justices Kennedy, Ginsburg, and Breyer tend to be the most inclined to resolve doubts in their own minds and ask serious questions of the advocates; the other five who ask questions tend toward the more flashy, the more sound bite-oriented, the more politically-charged.

So when Justice Kennedy identifies an "insidious dynamic" that may come to the Court should proceedings be televised, he has good reason for concern: that dynamic has already found its way to the Court.