WASHINGTON — The Supreme Court has what lawyers call a hot bench, and temperatures are rising.
“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”
The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.
Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.
“First of all, there are excuses for it,” Chief Justice Roberts said.
“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”
Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”
In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”
Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.
“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.
Chief Justice Roberts gave another reason for the warming trend.
“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”
Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.
“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”
It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.
“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”
There seems to be a consensus that the justices should moderate their volubility.
“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”
When the justices are not making points, they are cracking wise and keeping score.
Transcripts of oral arguments at the Supreme Court have long featured the notation “[laughter]” after a successful quip from a justice. But until October 2004, justices were not identified by name, making it difficult to create a reliable humor index.
That has changed, and Justice Kagan said she checked the rankings from time to time to see who leads in generating laughs. It is, she said, hard to compete.
“Justice Scalia is so way out in front of everybody else,” she said. “Justice Scalia has like lapped us 10 times.”
“I’m very securely in the middle,” she added, “but I heard somebody say I’m underperforming.”
It turns out she is doing better than she thought. A team of researchers led by Ryan A. Malphurs, the author of “Rhetoric and Discourse in Supreme Court Oral Arguments,” listened to recordings of every argument in the term that ended last year. They found that the court reporters who insert the “[laughter]” notations into transcripts are a tough crowd and had overlooked countless instances of courtroom levity.
“We gathered substantially more, or 61 percent more, instances of humor,” the new study concluded.
The study’s methodology was straightforward. “We deemed something as being humorous if it elicited laughter from the audience, justices or advocates,” Mr. Malphurs and his colleagues wrote. “We captured all moments of laughter in oral arguments that we could hear ranging from chuckles to full-throated roars.”
There were “343 instances of humor,” and all of the justices turned out to be funnier than previously thought, except for Justice Clarence Thomas, who did not speak during that term.
The humor differential ranged from 26 percent for Chief Justice Roberts to an astounding 200 percent for Justice Ginsburg, whom the study called a “true comedian.” Justice Kagan improved her performance by 53 percent.
As in so much else, the court’s five more conservative members prevailed.
“It turns out that the conservatives dominate, even carrying the silence of Justice Thomas, with 207 instances of laughter, or 41 instances per justice,” the study found. “The liberal justices trail with 136 instances — the same number as Justice Scalia on his own.”