"There are excuses for it. We don't
talk about the cases before the argument. It's the first time to get to learn
what our colleagues are thinking. We do sometimes debate each other through the
advocates. Recent appointees have been more aggressive that the colleagues they
have replaced. Sometimes I have to act as referee. I think we do tend to
overdo it a bit. It is too much. The lawyers do feel cheated sometimes. I'm
sure I'm as guilty as most."
Chief Justice John G. Roberts, Jr., Fourth Circuit Judicial Conference, June 29th
The Chief Justice of the United States, in a rare but routine public event at the end of this tumultuous term, politely acknowledged Saturday that he believes he and his colleagues on the bench ask too many questions during oral argument. "It is too much," John Roberts told a friendly audience at the Fourth Circuit Judicial Conference held at the luxurious Greenbrier resort in West Virginia. The remarks were immediately picked up by the Associated Press. The speech can be seen and heard in full here courtesy of C-SPAN.
Is this a story worthy of triggering Washington's outrage reflex? I don't think so. There are a dozen ways to react to the Chief Justice's complaints, ranging from the furious to the benign. The easy response, and certainly the most diplomatic, is to say that different justices are entitled to approach oral argument differently. Justice Clarence Thomas, famously, thinks that questions posed by the justices during oral argument (and the answers they generate from the lawyer) are so worthless in evaluating a particular case that he long ago opted out of the process. Just a few weeks ago, Justice Samuel Alito echoed a similar sentiment.