U.S. Supreme Court

Which justice asked the most questions? Is there a new 5-4 alignment? Stats have answers


Justice Sonia Sotomayor has overtaken Justice Antonin Scalia as the most active questioner during oral arguments.

Sotomayor asked an average of 21.6 questions per argument, compared to 20.5 questions for Scalia, SCOTUSblog (PDF) reports. The Wall Street Journal Law Blog (sub. req.) notes that statistic, part of a “Stat Pack” compilation by SCOTUSblog that also has these findings:

• There’s “an interesting third alignment” beginning to appear in 5-4 decisions. In three cases, Justice Antonin Scalia joined liberal, female dissenters while Justice Stephen G. Breyer joined conservative justices in the majority. The cases upheld DNA swabs for arrestees, ruled against lawyers who used motor vehicle records to find possible plaintiffs, and ruled against a Native American father disputing an adoption.

• Justice Anthony M. Kennedy, known as the swing voter, was most frequently in the majority in 5-4 decisions; he has had that position or tied for it in every term since 2003.

• The “conservative bloc” and Justice Anthony M. Kennedy made up the majority in 10 of the 23 cases that split 5-4. The “liberal bloc” joined with Kennedy to prevail in six decisions. The alignment in all the cases is here (PDF).

• Justice Samuel A. Alito Jr. “took a star turn” this term, writing “a staggering” six opinions in 5-4 cases.

• The Court released 78 merits opinions this term, an amount “roughly in line” with recent numbers.

• Justice Clarence Thomas wrote the most opinions: eight majority opinions, 11 concurring opinions, and six dissents.

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