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Transcripts give a glimpse into many justices' personalities

WASHINGTON—Mum's the word for Supreme Court Justice Clarence Thomas. Very, very mum.

Taking reticence to new heights, Thomas zips his lip during the robust intellectual combat known as the oral argument. While his eight colleagues joke, thrust, parry and probe, Thomas leans back in silence. And that's how he stays.

Since October 2004, when the Supreme Court began identifying individual justices on oral argument transcripts, the court has conducted some 218 hours' worth of arguments. Thomas has uttered a grand total of 281 words, a transcript review shows.

He last spoke during Supreme Court oral argument on Feb. 22, 2006. Since then, the court has convened for 104 oral arguments. That's 104 consecutive hours, during which Thomas hasn't said one single word.

"There's no reason to add to the volume," Thomas explained to visiting high school students in 2000, in a session that C-SPAN captured. "Usually, if you wait long enough, someone will ask your question."

Indeed.

But if Thomas appears checked out, his Supreme Court colleagues are fully dialed in, revealing themselves through the questions they ask. The questions can provoke, penetrate and confuse. They can entertain, enlighten and enlarge the listener.

Or they can simply baffle.

"Why don't you take the top five where we have 10 percent of the students, let's take the second five and they happen to have the same number on the card as the first five, and why don't they fall in the first 5 percent?" Justice Stephen Breyer asked in one recent New Mexico school-funding case.

"I'm not sure I understand," replied Sri Srinivasan, assistant to the solicitor general.

"All right," Breyer conceded. "Forget it."

Oral arguments are an ongoing constitutional conversation, displaying the acute minds and distinct personalities that shape the law under which Americans live. With judicial deliberations conducted in leak-proof secrecy, the oral arguments are the public's best opportunity to regard how justices serving life terms think and how they behave.

The justices can start off gentlemanly.

"May I ask what might be an awfully elementary and stupid question?" Justice John Paul Stevens, at 87 the most unfailingly polite of the justices, began characteristically in one recent case.

But don't mistake the pleasant tone for lack of claw.

In mid-April, for instance, Stevens was pressing attorney James Blumstein in a case that involved the recruitment of high school athletes. Justices often will force straight answers from attorneys who might prefer circumlocution.

"You're claiming that you'd be constitutionally protected even if you knew in advance that this particular communication would violate the rule and even if you did it deliberately?" Stevens asked. "That's your constitutional position, is it not?"

"Well, our ... your honor, the significance of the voluntariness ...," Blumstein began.

"Is it or is it not?" Stevens demanded.

"Yes," Blumstein said.

"It is?" Stevens pressed.

"Yes," Blumstein said. "I'm sorry. Yes."

Indeed, impatience lurks right below the civil surface of oral argument. Justices want answers, yes, but they also want arguments made well.

"Counsel, it's a good thing you've got a lot of fallback arguments," Chief Justice John G. Roberts told one struggling attorney recently, "because you fall back very quickly."

Then there's the hypothetical, a favorite of Breyer's.

A former Harvard Law School professor, Breyer is the most verbose of the justices. He's unleashed nearly 35,000 words during oral arguments since January, a transcript review shows. Repeatedly, he insists that lawyers imagine scenarios that are parallel to—or perhaps perpendicular to—the facts at hand.

"Suppose the policeman comes along," Breyer posited in one recent case arising out of California, "and he sees three people in a car and there is Jack the Ripper driving."

When they work, hypothetical questions can reveal a contradiction or expose a fundamental legal principle. Of course, they don't always work. Breyer recently pressed former Solicitor General Ted Olson to imagine an alternate universe in which federal officials would hire a lipstick company to test the redness of apples.

A lipstick company, you should know, is expert on the color red.

"Can we get back to what this case is about?" Roberts urged in a subsequent free-speech case, after another series of Breyer's hypothetical scenarios.

If Breyer can be painfully professorial, Justice Antonin Scalia is more freewheeling. With some 30,000 words spoken this year, he's nearly as talkative as Breyer. Explicitly combative, Scalia will jump straight in, crack a joke or show his ideological cards.

His questions crystallized how he's likely to vote in the free-speech case that arose from an Alaska high school student's waving a sign that read "Bong Hits 4 Jesus."

"Pot is fun?" Scalia suggested sarcastically.

"I think there is a ...," Douglas Mertz, the Juneau-based attorney for the student, began to answer.

"`Extortion Is Profitable.' That's OK?" Scalia pressed.

"Well ...," Mertz tried again.

"This is a very, very—with respect—ridiculous line," Scalia concluded, dismissing Mertz's unfinished answers.

By the time the justices convene for an oral argument, they and their influential clerks have immersed themselves in all conceivable arguments.

Assuming they've done their homework, the justices have read the lower-court opinions, the 30-page original petition, a 30-page reply, a 10-page counter-reply, two 50-page briefs on the merits, 20-page replies to THOSE briefs and any number of 30-page amicus briefs.

Roberts does his homework, as shown in his detailed questions.

"You used to have the entitlement under (e)(2) and you're saying, well, you could bring cases under (e)(2)," Roberts said in one recent tax case. "But 6404(h) allows you to bring cases under (e)(1). It would follow a fortiori that you could bring them for (e)(2) as well, but that doesn't prove that you could prove them under (e)(1) in the claims court or the district court."

More intelligibly to the average listener, the extensive preparation means that justices form their opinions well before oral arguments start. Often, questions are really bank shots, said more for the sake of their colleagues.

"Well, I appreciate the dialogue ...," St. Louis-based public defender Michael Dwyer ventured after one recent volley of competing questions.

"You don't have to engage in our dispute here," Scalia jokingly replied.

Knowing how oral-argument questions are employed, savvy lawyers let sympathetic justices lead them. The only required answer becomes: That's correct, your honor.

In a related vein, many questions are purely rhetorical asides that need no answer.

"People should have the opportunity to engage in grassroots lobbying," attorney James Bopp told the court last month in an election campaign-advertising case.

"Is that called democracy?" asked Justice Anthony Kennedy, whose questions tend toward the humorless.

"We are hopeful, your honor," Bopp replied.

Justices usually secure the occasional laugh line for themselves, sometimes at the expense of the attorneys appearing before them. Every now and then, though, it's the attorney who steals the last word.

"I've been trying to make sense out of what you're saying," Scalia told Solicitor General Paul Clement in a recent case.

"Well," replied Clement, a former Scalia clerk, "and I've been trying to make sense out of this court's precedents."

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