Storied Supreme Court: Justices Get Personal During Arguments

Nov. 27, 2011 -- "I don't usually like to reminisce," Supreme Court Justice Anthony Kennedy began during a recent session of oral arguments.

Then the 75-year-old justice recalled his days as a California trial lawyer as the basis for his question to the attorney standing before the bench.

The Supreme Court has finished its second round of arguments for the current term, during which there has been, despite Kennedy's assertion, plenty of reminiscing by him and others.

"I remember in law school," Chief Justice John Roberts began one question, as he recounted how a professor demonstrated the fallibility of witness accounts.

"When I was a prosecutor," Justice Sonia Sotomayor said, as she raised a query about witness testimony.

Oral arguments, which run October to April and are devoted to the dueling sides of a case, offer a window into the justices, their thinking and their personalities. Unlike written opinions, which mainly reveal a justice's legal and ideological approach in scholarly terms, oral arguments lay bare quirks and personal traits. There are moments of spontaneity from the raised mahogany bench that one would never see in a written opinion.

Substantively, many dynamics are at play. The justices probe the claims of the two sides. Yet they also use argument sessions to telegraph what they think of a dispute and perhaps begin persuading colleagues. And as has been evident in recent hearings, the justices sometimes turn to personal experience to make their points.

When Roberts recounted a law professor's lesson, it was to underscore flaws in witness reports: "He says, 'All right, everybody be quiet.' And then a certain amount of time goes by and then he starts asking people, 'Well, how much time went by?' And some people say four minutes, some people say one minute. And it turns out … to be a lot shorter than most people think."

In the same case from New Hampshire and in the same vein, Justice Kennedy recalled: "There was a case I had where a prosecution witness was very, very certain, all too certain, and I said: 'Do you ever take your wife out to dinner or go out to dinner with friends?' And he said: 'Oh, yes.' I said, 'Has it ever happened to you that midway in the meal you say, 'Is that our waiter?' And the waiter has brought you the menu, he has taken your order, he has brought your food, and you were under no stress at the time."

In a separate case, testing whether county jails may subject anyone arrested on a minor charge to strip searches, Kennedy said, "In my practice at least, county jails were much more dangerous than penitentiaries, because you don't know who these people are. You arrest them for traffic and they may be some serial killer."

Justices Samuel Alito and Sonia Sotomayor sometimes refer to their experience as former prosecutors and lower court judges. "I rarely called a witness to a grand jury when I was a prosecutor who I hadn't spoken to before," Sotomayor, an assistant district attorney in Manhattan early in her career, said in a session this month.

Justice Ruth Bader Ginsburg, who first gained national prominence as a women's rights advocate, sometimes raises the perspective of a victim of bias and retaliation. Justice Stephen Breyer, a former member of the U.S. Sentencing Commission, often has that experience in the backdrop of questions.

Occasionally, a comment reflects personal knowledge. Roberts, the only justice with young children, invoked his role as father in last term's arguments over access to violent video games: "Any 13-year-old can bypass parental controls in about five minutes."

University of Kansas social psychology professor Lawrence Wrightsman, who has analyzed oral arguments, says that when justices refer to their experiences, it "humanizes" them and puts them on the same terms as people across the country.

"When they talk about their personal experiences, it reminds us that their decisions will have implications for all of us," Wrightsman says. "The one thing that concerns me is that they may be relying on personal experience to verify the way the world is."

And there are times when a justice protests that he or she knows nothing about the subject at hand. In a recent case involving a suspect with a distinctive haircut and gold teeth implants, justices asked whether it was a common look. The lawyer referred to "hip-hop culture" and said of the hair and teeth, "They were not uncommon in the 1990s."

Justice Antonin Scalia blurted out, "They are uncommon to me."

In last term's video-games case, Scalia also professed a lack of awareness.

When Justice Elena Kagan referred to the "iconic" game of Mortal Kombat, Scalia interjected, to some laughter in the courtroom, "I don't know what she's talking about."