The first argument of 2022 in Sackett v. EPA also marked Justice Ketanji Brown Jacksons first argument as a newly appointed justice. After several of her peers on the Court completed introductory questions, Justice Jackson chimed in by piggybacking on top of the previous question asked by Justice Kagan. Justice Jackson began by asking about Congress intention with the Clean Water Act:
isnt the issue what Congress would have intended with respect to adjacency and there was a regulation that defined adjacency to include neighboring? And as far as I know, Congress used the term adjacency and didnt adjust it to try to make clear the touching requirement that you say was intended by the term.
After the attorney Mr. Schiff conceded this point, Justice Jackson followed up with:
Well, let me let me let me try to bring some enlightenment to it by asking it this way. You say the question is which wetlands are covered, which I agree with, but I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical, and biological integrity of the nations waters?
Justice Thomas actually began the questioning at oral argument as has typically been the case since last term. Justice Thomas began by helping Damien Schiff set the groundwork for the initial argument by engaging in the following back and forth:
JUSTICE THOMAS: Mr. Schiff, can can intrastate, purely intrastate, navigable bodies of water be waters of the United States?
SCHIFF: Yes, Justice Thomas.
JUSTICE THOMAS: And how is that, if its purely intrastate?
SCHIFF: If as a statutory matter, if that intrastate navigable water connects with some form of interstate transportation such that there could be a continuous channel of interstate commerce, then that water could be regulated.
While Justice Thomas began laying the foundation for questioning Mr. Schiff, the three justices on the left of the Court were all more involved in the arguments for the petitioners side than Justice Thomas was in terms of words spoken.
Perhaps more importantly, all three liberal justices were much more engaged during the petitioners turn than they were during the respondents argument. More engagement during one sides argument is often (but not always) a sign that the justices will vote against that side.
Since some of the more conservative justices spoke more during Brian Fletchers argument for the respondent, we may get a split decision for the first argument of the term.
The first figure tracks the words spoken during the entire span of oral arguments in Sackett.
While Justice Thomas only spoke sparsely, the rest of the justices engaged in the arguments more vigorously. The top four most active speaking justices in Sackett were the four female justices on the Court. This is also the first time four female justices have sat together on the Court. Quite a watershed moment.
The most active speakers on the Court during arguments in Sackett were as follows:
While the three more liberal justices spoke more during the petitioners argument, Justice Barrett spoke about evenly to both the petitioner and the respondents attorney.
Moving on to the rest of the week, Justice Jackson had the most words in an argument in the Merrill case with 2,269 words. It is very rare for a justice to speak over 2,000 words in an argument, even if there is extra time given for that argument. The next most active speaking justice in Merrill was Justice Kagan at 1,436 words.
Justice Jackson spoke more than any other justice in three of the four arguments this past week: Arellano, Sackett, and Merrill. She ended the week with almost a third more words spoken than any other justice at 4,568 words. The graph below shows the breakdowns for all the justices across the week.
Last Term
Last terms first argument was in Mississippi v. Tennessee. There was less engagement from the justices on the whole in that argument than in Sackett. In Sackett two justices, Justices Sotomayor and Barrett, each spoke over 1,000 words. No justice spoke over 1,000 words in last terms first argument. The justice that spoke the most during that argument was Chief Justice Roberts with 920 words and the second most came from Justice Gorsuch with 736 words.
The justices were even less talkative during the second oral argument last term which was Wooden v. United States. There, Justice Alito spoke the most with 751 words followed by Justice Kagan with 717 words.
Other Justices Firsts
Going back over the speaking statistics for the two justices appointed prior to Justice Jackson Justices Barrett and Gorsuch Justice Jackson appears to be much more talkative out of the gates.
Justice Barrett was confirmed in late October of 2020 and so she didnt sit for oral arguments until the November sitting. Her first oral argument was in United States Fish and Wildlife v. Sierra Club. Barrett was more reticent than Justice Jackson in her first oral argument as she spoke 490 words. The following graph has the speaking statistics for all the justices at that argument.
Per the statistics the justices appeared generally less engaged in these arguments than they did in Sackett. That said, Justice Breyer was far ahead of the pack in the US Fish arguments followed by Justice Kagan. Justice Gorsuch who spoke the third most during those arguments spoke over 150 fewer words than Justice Breyer.
Justice Kavanaugh was confirmed to the Court on October 6, 2018. He also did not start at the beginning of the term but took part in the last several arguments of the October sitting. Justice Kavanaughs first oral argument was in Stokeling v. United States. In 2018 as this was pre-pandemic Thomas was not generally participatory at oral arguments and he did not ask any questions in Stokeling. Justice Breyer did not actively participate either. This left seven justices to engage in oral arguments.
The justices still did not speak as much in Stokeling as they did in Sackett. Even so, Kavanaugh was the fifth most talkative justice during those arguments. In Stokeling, the justices word counts were as follows:
Kavanaugh only said 345 words during those arguments. This was fewer than Justices Barrett and Jackson in their first oral arguments. All other justices speaking statistics in Stokeling were dwarfed by Justice Kagans 1,067 words. Justice Alito was the second most active justice in the Stokeling arguments with 680 words.
Will Justice Jackson continue with her active participation during oral arguments? Will the female justices continue to ask questions as frequently especially the liberal justices? Will the speaking statistics correlate with the justices votes on the merits? We are only four oral arguments into the 2022 Term and there are lots of questions like these that will take weeks or months to answer.
Read more at Empirical SCOTUS.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam atadam@feldmannet.com.Find him on Twitter:@AdamSFeldman.
Read more:
Liberal Justices Take The Reins In First Week Of Arguments - Above the Law
- Have the Liberal Arts Gone Conservative? - The New Yorker - March 12th, 2024 [March 12th, 2024]
- Letters to the Editor: 'I see myself in Katie Britt' what liberal critics missed in the senator's response - Los Angeles Times - March 12th, 2024 [March 12th, 2024]
- Even when it criticizes Israel, the liberal world is not against us - opinion - The Jerusalem Post - March 12th, 2024 [March 12th, 2024]
- Former Trump Aide Alyssa Farah Griffin Becomes a Liberal Favorite - The New York Times - March 12th, 2024 [March 12th, 2024]
- Renowned author, liberal arts proponent to deliver annual Lester Lectures - Mercer University - March 12th, 2024 [March 12th, 2024]
- NYU to Host Zaheer Ali at the Annual Liberal Studies Student Research ColloquiumApril 5 - NYU - March 12th, 2024 [March 12th, 2024]
- Power to the Neighborhoods!: New York City Growth Politics, Neighborhood Liberalism, and the Origins of the ... - Joint Center for Housing Studies - March 12th, 2024 [March 12th, 2024]
- Canada's Conservatives back NDP-Liberal anti-scab legislation that undermines the right to strike - WSWS - March 12th, 2024 [March 12th, 2024]
- The Surprising Left-Right Alliance That Wants More Apartments in Suburbs - The New York Times - March 12th, 2024 [March 12th, 2024]
- PARKER: Clarence Thomas, liberal racism and the ongoing denigration of Black conservatives - Kankakee Daily Journal - March 12th, 2024 [March 12th, 2024]
- Liberal Media Scream: Hollywoods freaks over Trump - Washington Examiner - March 12th, 2024 [March 12th, 2024]
- Why liberals failed in the fight against antisemitism - JNS.org - March 12th, 2024 [March 12th, 2024]
- Liberal Renew manifesto sneak peek and bits from Bucharest congress - EURACTIV - March 12th, 2024 [March 12th, 2024]
- Katie Britt calls on liberal media 'to pay attention' to border - 1819 News - March 12th, 2024 [March 12th, 2024]
- Liberal truck wash cited $171k for OSHA violations - KSN-TV - March 12th, 2024 [March 12th, 2024]
- Over 30,000 Killed in Gaza, but Even Israel's 'Liberal Left' Says: That's War - Opinion - Haaretz - March 12th, 2024 [March 12th, 2024]
- Liberal Man Injured in Beaver County Accident - KSCB News.net - March 12th, 2024 [March 12th, 2024]
- What is the Market's View on China Liberal Education Holdings Ltd (CLEU) Stock's Price and Volume Trends Monday? - InvestorsObserver - March 12th, 2024 [March 12th, 2024]
- German liberals send defence expert into tripartite EU election leadership team - EURACTIV - March 12th, 2024 [March 12th, 2024]
- Ramaswamy warns liberal justices 'buying political latitude' with 9-0 ruling as more Trump cases lie ahead - Fox News - March 12th, 2024 [March 12th, 2024]
- How much of this is propelled by white liberal guilt from executives?: Gutfeld - Fox News - March 12th, 2024 [March 12th, 2024]
- Liberals and the Libel of Christian Nationalism - The Imaginative Conservative - March 12th, 2024 [March 12th, 2024]
- Liberal Arts & Science Academy - Austin extends home winning streak to seven - MaxPreps - March 12th, 2024 [March 12th, 2024]
- Liberal Racism and the Denigration of Black Conservatives - Daily Signal - March 12th, 2024 [March 12th, 2024]
- Watchdog group exposes radical, liberal ideology of school-based health centers - The Lion - March 12th, 2024 [March 12th, 2024]
- What happens when a liberal learns her family owned slaves? - Leader & Times - February 11th, 2024 [February 11th, 2024]
- Is it Liberal Arts, Without the Arts? - Xavier Newswire - February 11th, 2024 [February 11th, 2024]
- Quebec Liberal Party would be more popular with Denis Coderre at the helm: poll - Montreal Gazette - February 11th, 2024 [February 11th, 2024]
- Maine's Liberal Members of Congress Stand by Biden After Disastrous, Confused Press Conference - The Maine Wire - February 11th, 2024 [February 11th, 2024]
- Liberal Media Scream: Kristen Welker likes to lecture Republicans, too - Washington Examiner - February 11th, 2024 [February 11th, 2024]
- Australia's only Liberal government lives on - for now - Yahoo News Australia - February 11th, 2024 [February 11th, 2024]
- Liberal institutions are the threat to liberal institutions Claudine Gay is warning about - Washington Examiner - January 10th, 2024 [January 10th, 2024]
- Elon Musk, the "free speech absolutist" kicks liberal journalists off Twitter - Daily Kos - January 10th, 2024 [January 10th, 2024]
- Liberal Arts and studies in humanities under attack on college campuses - The Community Word - January 10th, 2024 [January 10th, 2024]
- Liberal candidate for federal byelection planned to run for Conservatives last year - National Post - January 10th, 2024 [January 10th, 2024]
- Bill Barton: 'The Liberal by the Bay' - Redheaded Blackbelt - December 7th, 2023 [December 7th, 2023]
- OPINION | Female-dominated liberal arts imperative in male-dominated tech world - Tulane Hullabaloo - December 7th, 2023 [December 7th, 2023]
- Dean of the College of Liberal and Fine Arts job with Tarleton State University | 37572379 - The Chronicle of Higher Education - December 7th, 2023 [December 7th, 2023]
- Laughing Stock: 'A liberal agenda' may not be what you think - Tucson Weekly - December 7th, 2023 [December 7th, 2023]
- Justin Trudeau plays the Trump card - POLITICO - POLITICO - December 7th, 2023 [December 7th, 2023]
- Norman Lear, Producer Of TV's 'All In The Family' And Influential Liberal Advocate, Dies At 101 - Newstalk 750 - 103.7 ... - KFQD - December 7th, 2023 [December 7th, 2023]
- Kremlin Taps Liberal Businessman to Oppose Putin in 2024 Election Report - The Moscow Times - December 7th, 2023 [December 7th, 2023]
- Norman Lear, producer of TV's 'All in the Family' and influential liberal advocate, has died at 101 - WV News - December 7th, 2023 [December 7th, 2023]
- MoveOn Carries Out Layoffs as Liberal Groups Struggle to Raise Money - The New York Times - December 7th, 2023 [December 7th, 2023]
- Norman Lear, producer of TV's 'All in the Family' and influential liberal advocate, has died at 101 - El Paso Inc. - December 7th, 2023 [December 7th, 2023]
- UW System President suggests universities with high numbers of low income students should shift away from liberal arts - Wisconsin Examiner - December 7th, 2023 [December 7th, 2023]
- Norman Lear, producer of TV's 'All in the Family' and influential liberal advocate, has died at 101 - The Caledonian-Record - December 7th, 2023 [December 7th, 2023]
- Israels representative in New York resigned to protest Netanyahu. Now hes got some tough words for liberal New York Jews. - Forward - December 7th, 2023 [December 7th, 2023]
- Neal Milner: Watch That Swinging Door, Liberals, Lest It Hit You On The Way Out - Honolulu Civil Beat - December 7th, 2023 [December 7th, 2023]
- The Liberal Answer to Cancel Culture - Manhattan Institute - November 8th, 2023 [November 8th, 2023]
- Study: Liberal US priests facing 'progressive' extinction - The Pillar - November 8th, 2023 [November 8th, 2023]
- Liberal Jewish U.S. Groups Are Walking an Oh-So-Thin Tightrope - The New Republic - November 8th, 2023 [November 8th, 2023]
- Why a liberal arts degree is often a ticket to career success - USC Dornsife College of Letters, Arts and Sciences - November 8th, 2023 [November 8th, 2023]
- Open Forum: In their time, founding fathers were liberal - The Winchester Star - November 8th, 2023 [November 8th, 2023]
- Liberals announce National Campaign Committee Co-Chairs - Liberal Party of Canada - November 8th, 2023 [November 8th, 2023]
- UT College of Liberal Arts hosts panel about Senate Bill 17 - The Daily Texan - November 8th, 2023 [November 8th, 2023]
- Liberal Arts student uses platform to educate others on the ... - Pennsylvania State University - November 8th, 2023 [November 8th, 2023]
- Stanford celebrates 50 years of Structured Liberal Education ... - Stanford University News - November 8th, 2023 [November 8th, 2023]
- Brookline homes: One wealthy liberal town reckons with its past - The Boston Globe - November 8th, 2023 [November 8th, 2023]
- The Value of a Liberal Arts Degree: Whats the Return on Investment? - The New York Times - November 8th, 2023 [November 8th, 2023]
- California Police Say Investigation Ongoing into Death of Liberal Pro ... - Crime Report - November 8th, 2023 [November 8th, 2023]
- Liberal Arts, IST student scores sports technology internship with ... - Pennsylvania State University - November 8th, 2023 [November 8th, 2023]
- And the award for the worst Liberal Party leader goes to... - The New Daily - November 8th, 2023 [November 8th, 2023]
- Street fights over prayer offer liberal Israelis a chance to define a Judaism they can believe in - JTA News - Jewish Telegraphic Agency - September 29th, 2023 [September 29th, 2023]
- Unmasking Hinduphobic Cartoons: The Liberal Media's Double Standard - The Jaipur Dialogues - September 29th, 2023 [September 29th, 2023]
- UC presents lecture on liberal arts featuring Michael W. Twitty - University of Cincinnati - September 29th, 2023 [September 29th, 2023]
- ISU makes progress on liberal arts cuts through incentivized ... - The Gazette - September 29th, 2023 [September 29th, 2023]
- Investing in the future of the liberal arts | Binghamton News - Binghamton - September 29th, 2023 [September 29th, 2023]
- Challenges to Liberal Democracy on Global Scale Is Topic of 2023 ... - University of Idaho - September 29th, 2023 [September 29th, 2023]
- Liberal Democrats edge ahead of Labour on charging, with free ... - Disability News Service - September 29th, 2023 [September 29th, 2023]
- Kerry Washington Creates $1 Million Earl and Valerie Washington ... - GW Today - September 29th, 2023 [September 29th, 2023]
- LILLEY: Justice Rouleau may have old Liberal Party ties but he's not Justin Trudeau's uncle or related at all - Toronto Sun - February 20th, 2023 [February 20th, 2023]
- Brian Lilley: Justice Rouleau may have old Liberal Party ties but he's not Justin Trudeau's uncle or related at all - The Province - February 20th, 2023 [February 20th, 2023]
- force.com - November 27th, 2022 [November 27th, 2022]
- Liberal Party SA - November 25th, 2022 [November 25th, 2022]
- Liberal Fascism: The Secret History of the American Left, From ... - November 25th, 2022 [November 25th, 2022]
- Ex-VP Hamid Ansari's 'Challenges to a liberal polity' book review: The politics of being Indian - The New Indian Express - November 7th, 2022 [November 7th, 2022]
- English | Liberal Arts | UT - Austin - November 5th, 2022 [November 5th, 2022]
- Liberal values are absolute - The Tribune India - October 17th, 2022 [October 17th, 2022]
- Fixing another liberal tax burden - The Hill - October 17th, 2022 [October 17th, 2022]