Bryan Stevenson, a superhero in the pantheon of the liberal public interest bar, was standing before the U.S. Supreme Court on Nov. 9, arguing against life in prison without parole for juvenile offenders.
New Justice Sonia Sotomayor, painted as an unrepentant liberal during her July confirmation hearing, started to question him. Would she throw him a softball?
Not a chance. She asked him to interpret an earlier ruling in his case, Sullivan v. Florida. When he gave an answer with which she disagreed, Sotomayor snapped, "No, that's an unfair characterization."
Stevenson seemed taken aback, though he said, "I accept that," and moved on.
Stevenson is not the only lawyer to provoke a strong comment from the newest justice. During oral argument in Perdue v. Kenny A on Oct. 14, she exclaimed to a lawyer, "That's not true!"
And in Jones v. Harris on Nov. 2, Sotomayor asked a lawyer politely, "Can I unpackage your argument a little bit?" proceeding to describe part of it as "meaningless."
As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take.
All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."
What's notable is that Sotomayor has tuned into the high court's wavelength so early in her tenure. The memo about new justices being seen more than heard must have gotten lost in the interoffice mail. During the final oral argument last week, Hertz v. Friend, Sotomayor asked 16 questions, more than any other justice.
To quantify Sotomayor's participation thus far, The National Law Journal tallied the number of questions Sotomayor asked in the second two-week cycle of arguments this term and compared it to the number asked by Roberts and Alito, the other recent newcomers to the Court, during the comparable period early in their tenures. The second cycle was picked to minimize the effect of first-month jitters.
As expected, Sotomayor came out on top. She asked 146 questions during the 13 November arguments this term, by NLJ's count, for an average of 11.2 questions per argument. Roberts came next, asking 110 questions during 11 arguments in the November cycle of 2005, for an average of 10 questions per argument. As for Alito, he asked only 45 questions in the 13 March 2006 arguments, for an average of 3.5 per argument.
Sotomayor's approach to questioning from her seat at the left end of the bench has become quickly familiar. At least once in virtually every argument, Sotomayor hunches forward, as if to get as close as possible to the lawyer before the Court. She launches into a tightly packed dialogue with the advocate -- difficult for others to interrupt -- rather than asking a single question. As she grills the lawyer, she casts her eyes to her right, as if to check whether her colleagues are paying attention. They are.
It's not easy for a new justice to break into the rat-a-tat-tat of oral argument that is typical at the Supreme Court. Alito complained early in his tenure about how hard it was to say anything -- a problem he has since overcome by interrupting lawyers and colleagues just like everyone else. Retired Justice Sandra Day O'Connor used to say that she often asked the first question during argument because it was so hard to cut in later. Sotomayor has already been the first questioner at least once.
Justice Ruth Bader Ginsburg faced criticism for dominating oral argument when she first joined the Court in 1993. Respected former solicitor general and Harvard Law School dean Erwin Griswold, since deceased, told this reporter at the time, "She has spent 12 years on a court with three judges, and now she is on a court with nine. I would hope someone would get word to her that she should take less time." Ginsburg still resents the criticism she got then, dismissing it as sexist.
Since then, the entire Court -- except for Clarence Thomas, who has not asked a question since 2006 -- has become more talkative, making Sotomayor's participation not very different from several other justices, male and female. Her in-your-face New York style does seem more intense than that of her more reserved predecessor, New Englander David Souter; as a result, her arrival may be making a hot bench even hotter. But Souter could be tenacious, too, and sometimes even he would lace into a lawyer and not let go.
"Her questions are just as difficult as Souter's, but asked in a different style," said veteran advocate David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, author of a book on appellate advocacy. Frederick thinks it's too early to appraise Sotomayor's influence on the Court's dynamics. "They're still getting to know each other on the bench."
Sotomayor's style is also very much true to form for her, said Sidley Austin's Supreme Court guru Carter Phillips. "I don't see any huge difference between her on the Supreme Court and the way she was on the 2nd Circuit," said Phillips. "The pace is obviously faster at the Supreme Court because of all the questions from every direction. And that affects each justice too."
Sotomayor's reputation for tough questioning on the 2nd Circuit briefly became a confirmation issue this summer. Sen. Lindsey Graham, R-S.C., told her pointedly he did not like "bully judges."
No one now is accusing Sotomayor of being a bully, and one lawyer who argued before her in New York said she is more polite to lawyers than she was on the 2nd Circuit.
Now, she is just one of several aggressive questioners trying to get a word in edgewise. So far, she is succeeding.
