If you didn’t know it was a Supreme Court argument, you might think you were seeing a catastrophically overbooked cable television show. The justices of late have been jostling for judicial airtime in a sort of verbal roller derby.
Consider an argument last month about the right to counsel.
About 15 minutes in, Justice Stephen G. Breyer tried to ask a question. The effort failed, and Justice Ruth Bader Ginsburg jumped in. A half-hour passed before Justice Breyer had another chance, and now his attempt was interrupted by Justice Antonin Scalia, who said Justice Breyer was asking irrelevant questions.
Then Justice Scalia pressed a point that did not interest Justice Breyer. As the lawyer tried to answer Justice Scalia, Justice Breyer stopped him. “Skip that one,” Justice Breyer said of Justice Scalia’s question.
Earlier, as Justice Samuel A. Alito Jr., was trying to get a word in edgewise, Justice Scalia succeeded in handing off the ball to a frequent ally, Justice Samuel A. Alito Jr. “Maybe Justice Alito can ask his question,” Chief Justice John G. Roberts Jr., said as he finished making his own point.
Seth P. Waxman, a former United States solicitor general, was caught in the cross-fire. He was answering a question from Justice Sonia Sotomayor when Chief Justice John G. Roberts tried to interrupt.
“Counsel,” the chief justice said.
Mr. Waxman kept talking, which seemed to irritate the chief justice.
“Counsel!” the chief justice repeated, now in a raised voice. (The exclamation point is in the official transcript.)
Mr. Waxman was contrite. “Mr. Chief Justice, I’m sorry,” he said.
Stephen Wermiel, who covered the Supreme Court for The Wall Street Journal in the 1980s, was at the argument in the recent right-to-counsel case, Turner v. Rogers. Things have changed, he said.
“Twenty-five years ago, Supreme Court watchers advanced the view that oral arguments enabled justices to signal one another about their view of a case,” said Mr. Wermiel, a co-author of a recent biography of Justice William J. Brennan Jr. “But there are arguments today which seem more like sparring among the justices than signaling.”
The two newest members of the court, Justices Sotomayor and Elena Kagan, are more active than the justices they replaced. Where Justice David H. Souter would deploy a single finely constructed query, Justice Sotomayor is apt to barrage advocates with a series of insistent questions. And where Justice John Paul Stevens often asked one telling question near the end of an argument, Justice Kagan is in the thick of the discussion throughout.
Chief Justice Roberts, who argued 39 cases in the Supreme Court before joining it, used to face an active but not overbearing bench. Even then, he told students at Columbia Law School in 2008, the advocate had to understand his place in the highly stylized discourse that is a Supreme Court argument.
“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” the chief justice said. “One of the real challenges for lawyers is to get involved in that debate.”
Now that he wears robes, Chief Justice Roberts sometimes shows a mischievous side that he had kept in check as a lawyer. He delights in pointing out internal contradictions in advocates’ positions and in asking them questions with no good answers.
“You try to throw them off balance a little bit,” he told C-Span in 2009.
He certainly did that last month in a case about police questioning of a student, Camreta v. Greene.
The student’s lawyer was about a dozen words into her argument, trying to explain why the case was moot. Chief Justice Roberts interrupted her.
“Then why are you here?” he asked, to laughter. “Why don’t you just go away?”
The lawyer, Carolyn A. Kubitschek, said something about protecting a moral victory, but her argument from that point on was uneven. If the chief justice’s goal was to throw her off balance, he succeeded.
At other times, Chief Justice Roberts must play the role of air traffic controller, trying to make sure his colleagues’ questions land one at a time without crashing into one another.
In November, at an argument over prison crowding in California, Justice Sotomayor jumped in while Justice Ginsburg was in the middle of a question.
“I’m sorry,” Chief Justice Roberts told the perplexed lawyer. “Could you answer Justice Ginsburg’s question first?”
Something similar happened at an argument over state secrets in January.
“Did the contract — ” Justice Kennedy started, just as Justice Sotomayor entered the fray.
“Counsel, you can’t ever give — ” she said.
Chief Justice Roberts made the call. “Justice Kennedy,” he said. After that exchange was complete, he said, “And now Justice Sotomayor.”
Something important is being lost in these rapid-fire exchanges, Mr. Wermiel said.
“A lawyer arguing a case may be only a few words into answering a multipart question from one justice before another justice interrupts to take the argument in a different direction entirely,” he said. “Some arguments now more closely resemble a Ping-Pong match than a dialogue or conversation.”
Correction: April 7, 2011
The Sidebar column on Tuesday, about unruly arguments at the Supreme Court, misidentified, based on a court transcript, two justices who spoke in a right-to-counsel case. The comment “Maybe Justice Alito can ask his question,” was made by Chief Justice John G. Roberts Jr., not Justice Antonin Scalia. And the justice who had been trying to get a word in edgewise was Justice Samuel A. Alito Jr., not Justice Anthony M. Kennedy.