U.S. Supreme Court

Consultant Analyzes Health Arguments, Names Top Pontificator, Inquisitor and Doppelganger Justices


Justice Sonia Sotomayor got the “inquisitor” award for
interrupting 89 times. K2 images / Shutterstock.com

A Texas trial consultant has tallied justices’ questions during arguments on the health care statute and determined that the likely swing voters were overwhelmingly skeptical of the law.

The analysis by Ryan Malphurs confirms reporters’ initial impressions that the government’s arguments in support of the law did not go well. The Washington Post covered Malphurs’ findings.

Malphurs determined which justices spoke the most, interrupted the most, and pontificated the most. He also looked how much of justices’ speaking time favored one side or another. The results of the new study disappoint Malphurs, who saw one-sided questioning that, in his view, undermines the public expectations of neutrality.

The two justices thought to be most in play are Chief Justice John G. Roberts Jr. and Anthony M. Kennedy, the Post says. Both spent most of their speaking time challenging the law’s supporters; it was about 81 percent of the speaking time for Roberts, and 73 percent for Kennedy.

Malphurs previously studied oral argument laughter and deemed Antonin Scalia the funniest justice.

Other conclusions by Malphurs and his co-author, University of North Texas grad student L. Hailey Drescher, in the new study of health care arguments:

• Justice Stephen G. Breyer gets the “pontificator” award for taking the most time to speak during the arguments—1,898 seconds. His talking time was marked by “lengthy hypotheticals and philosophical pondering.”

• Justice Sonia Sotomayor gets the “inquisitor” award for interrupting 89 times.

• Justice Scalia is the most “garrulous” for making 88 statements, narrowly beating out Sotomayor, who made 87 statements. Both justices get the “doppelganger” award, “not only because they look alike but because they both behaved as advocates for their preferred party.”

• Justice Samuel A. Alito Jr. is the “not so fairest of them all” justice for devoting 91 percent of his speaking time to challenge the position of those supporting the law.

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