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In 2004, Chief Justice John G. Roberts Jr., then a member of the U.S. Circuit Court of Appeals for the District of Columbia, tested a newly discovered theory for predicting Supreme Court outcomes. Using oral argument transcripts, he tallied the number of questions justices asked of advocates in a significant sampling of cases. About 86% of the time, Roberts reported in a talk to the Supreme Court Historical Society, the lawyer for the party that ultimately lost had received the most questions. “The secret to successful advocacy,” Roberts deadpanned in conclusion, “is simply to get the Court to ask your opponent more questions.” Now that Roberts asks the questions, it turns out that he, more than any other active questioner, is confirming that predictive theory. A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. In 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than of the side he favored. The numbers tend to support the growing perception that Roberts can be a sharp, even acerbic, questioner. In Hein v. Freedom From Religion Foundation, the establishment clause case involving taxpayer standing, Roberts asked winning Solicitor General Paul Clement only three questions, while hitting Andrew Pincus of Chicago-based Mayer, Brown, Rowe & Maw, the lawyer for the losing foundation, with 23. Justice Stephen G. Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25. These findings are reported by University of Kansas psychology Professor Lawrence Wrightsman, author of a forthcoming book of empirical analyses of Supreme Court oral arguments. His book The Psychology of the Supreme Court was published last year. Wrightsman’s latest analysis builds on a 2002 study performed by Sarah Shullman, a Georgetown University Law Center student. Wrightsman and his students have found that the correlation is not as strong as previously thought. They determined that the winning side got fewer questions in only 60% to 65% of the court’s cases. So why does Roberts ask more questions of the side he is against? Wrightsman thinks Roberts comes to the argument with a “predisposition.” He adds, “I don’t want to say he has already decided the case, but he is setting a higher standard for one side than for the other.”

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