Breyer asks long hypothetical questions, Roberts employs sarcasm
By Mark Sherman
Associated Press
WASHINGTON (AP) — Justice Sonia Sotomayor wants you to know she’s sorry. Justice Neil Gorsuch is only asking for some help.
When you sit through almost all the Supreme Court arguments in a week, a month or even a term (as The Associated Press does), you hear the same phrases over and over.
Some justices have a sort of verbal signature, phrases they employ to disagree — more or less politely — with a lawyer arguing in front of them.
Some can occasionally be jarring, as when Sotomayor interrupts a lawyer by saying, “I’m sorry,” in a tone that suggests she isn’t, even a little bit. When Gorsuch seeks help, he’s often saying he’s not buying what the lawyer is selling.
Disagreeing with Apple’s lawyer last Monday over the company’s relationship with iPhone users in a case about the sale of apps, Sotomayor cut in, “I’m sorry, the first sale is from Apple to the customer.”
In the same arguments, Gorsuch asked David Frederick, the lawyer for iPhone users, for help three times, beginning with a problem he was having with Frederick’s case: “I guess here is where I’m stuck and need your help.” Gorsuch and Frederick once were part of the same law firm.
Gorsuch and Sotomayor are seatmates and ideological opposites who appear to have a friendly rapport on the bench. They’re not alone in their identifiable manner of posing questions.
Justice Stephen Breyer asks long hypothetical questions with a touch of self-deprecation and sometimes wants to know what words he should write in an opinion favoring one side or the other. Chief Justice John Roberts sometimes employs sarcasm, occasionally apologizing for it.
Justice Ruth Bader Ginsburg often is first out of the blocks with a question, usually based on discrete facts in the case record rather than some lofty legal principle.
But for invocations of the same phrases across many arguments, Sotomayor and Gorsuch win the prize. Sotomayor said she’s sorry 98 times last term and 30 times so far since the new term began in October. Gorsuch employed some form of “help me out” 25 times last term and 10 times since October.
The justices may be relying on rhetorical devices they adopted earlier in their careers, when putting someone at ease or even justifying that the question being asked was important, said Art Markman, a professor of psychology and marketing at the University of Texas at Austin.
“A Supreme Court justice isn’t sorry she’s asking a question. The questions have a particular point. They’re not just asking to get information, but also communicating to the parties standing before the court and their colleagues,” Markman said.
Breyer drew laughs on Wednesday when he began a question in a case about police confiscation of a vehicle used by a man who sold heroin to undercover officers this way: “I have a vague recollection. Often such recollections are incorrect.”
The use of humor, and self-deprecating remarks in particular, can be a way of cutting tension, Markman said. “The cases have important and long-lasting implications for the U.S. legal system. In an environment with that degree of tension, there’s a danger that exchanges could get heated in ways that are unproductive,” he said.
On rare occasions, justices will flash irritation or even anger from the bench.
On Tuesday, Justice Elena Kagan was smiling when lawyer Lisa Blatt said that a Kagan question was “fundamentally wrong in several respects.”
Kagan cut in: “Fundamentally wrong?”
The audience laughed as Blatt amended her answer to say it was “factually wrong.”
Kagan: “Factually and fundamentally?” She was still smiling, and there was more laughter in the courtroom.
But Kagan’s smile was gone a few minutes later when Blatt started to answer before the justice had completed her question.
“What is — just let me finish the question, yes?” Kagan said.
Justices interrupt lawyers, but that’s not supposed to be a two-way street.
