Many other forms of judicial behavior also changed in the mid-1990s. Starting in 1995, the time that justices spent speaking during oral argument skyrocketed, leaving the advocates with far less of the 60-minute argument to make their cases.
.. The justices as a group have taken an additional 13 minutes of argument after 1995 than before, an increase of 22 percent.
.. What caused these trends?
.. Rather, behavior at the Supreme Court changed in response to a radical increase in political polarization.
.. The 1994 Republican Revolution, led by Rep. Newt Gingrich (Ga.), coincided with a rapid rise in polarization. Ideological distance between the two parties grew, and the number of moderates in Congress plummeted. Norms of bipartisan lawmaking began to erode, and eventually the Republican majority impeached a popular Democratic president.
.. During this period, the justices’ questions to litigants barely increased, but nonquestions — occasions when the justices made statements, rebutted their colleagues and presented arguments — rose precipitously. Since 1995, the justices have made comments almost three times as often as they have asked questions
.. Together, the justices have made more than 100 additional comments per case since 1995. Rather than inviting advocates to explain their positions, the justices are often making the cases themselves.
.. The link with polarization is clear: The justices now disproportionately disrupt the side that they ultimately rule against.
.. The justices generally direct their true questions to the side they support and their comments to the side they oppose. The difference, again, increased massively since 1995.
.. Justices also began more frequently to supply answers through leading questions and to step in with deflection and rebuttal. At oral argument in Dean v. United States last year, after Justice Sonia Sotomayor repeatedly came to the aid of a struggling advocate, he mistook Sotomayor for Justice Elena Kagan. “She’s Justice Sotomayor,” Kagan told him. “She was the one helping you.” It was an unusually frank recognition of what oral arguments have become: a chance for the justices to support their side over the other one.