At the High Court, the Big Talker Award Goes To . . .

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Written By admin at Thursday, March 29th, 2012

The centerpiece of the Supreme Court’s three days of health-care arguments was the two-hour Tuesday morning session about the constitutionality of the mandate to carry health insurance or pay a penalty.

We did a quick tally of how many lines in the transcript were spoken by each justice. The numbers show how the conservative justices dominated the first half of the session, battering Solicitor General Donald Verrilli with questions about broccoli and burial services, while liberal justices did the vast majority of the talking in the second half as they questioned the law’s challengers.

The conservative justices—Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy and Samuel Alito—accounted for 75% of justice questions in the first half (462 of 614 lines in the transcript by our count—your results may vary slightly). Chief Justice Roberts and Justice Scalia were easily the biggest talkers in that half.

In the second half, the liberal four—justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—did 85% of the talking for the justices (493 of 583 lines). Justice Scalia spoke just five lines in the second half, and two of them were to poke fun at Justice Breyer for being long-winded.

Speaking of which, the overall Big Talker Award for the centerpiece session goes to … Justice Breyer, who spoke 226 lines to Chief Justice Roberts’s 197. The silence award goes to Justice Clarence Thomas, with his usual zero.

As for what it all means, consider that swing vote Justice Anthony Kennedy also barely spoke in the second half, listening for nearly an hour as the liberal justices made the case—arguably more effectively than Verrilli did—that health care was a unique marketplace. With just a few minutes left, Justice Kennedy stepped in to remark that young uninsured people “uniquely” affect costs in medical care “in a way that is not true in other industries.”

Does Justice Kennedy stand closer to that view, or to the view he expressed in his more loquacious first half, when he said the health law “changes the relationship of the federal government to the individual in a very fundamental way”? The answer to that question could well decide this case.

Law Blog