Bringing this elongated Elite Eight round to a close is the left-leaning, liberal battle between the Notorious RBG and Stephen Breyer. One has a cool nickname and is pulp culture icon. The other doesn’t have a cool nickname (and if he did it would probably still just be Stephen Breyer) but is definitely one of the more active judges when it comes to oral arguments.
So, without further adieu, let’s get ready to, well, you know….
Courtroom Curiosity
At oral arguments, the first justice to fire off a question tends to get the ball rolling for the other justices to propel their own carefully aimed bullets towards both the sitting duck at the podium and certain justices that may be on the fence. This break in the meticulously prepared intro by the counselor allows the topic to move in any direction the given justices chooses. However, getting the firing squad started and delivering a kill shot are two completely different things.
Ginsburg is quite notorious for being the first to interrupt counsel. Over the past four years, she has finished as the most frequent first questioner three times, only being beaten out in OT2013 by Sonia Sotomayor. However, once that first question is asked, RBG tends to fall back into the shadows. Only once in a blue moon does Ginsburg finish as the top 3 questioner and it is even rarer to see her finish as the most active justice at oral arguments.
On the flip side, Breyer rarely shoots firsts (only twice during the past four years) but once he starts asking questions, he finds it hard to stop. Over the past four terms, Breyer finished in the Top 4 in both the Top Questioner and Top 3 Questioner rankings. On average, Breyer asks 17 questions per argument while Ginsburg tends to ask much fewer (averaging only 10 questions per orals).
Although RBG often gets the fireworks started, Breyer is the justice that keeps the show going. For this reason, Breyer takes this category.
Category Winner: Stephen Breyer
Penning Power
Relentless Ruth commands the attention of the other justices in a meek yet massive way. When it comes to getting justices on her side to concur with an opinion, she definitely possesses an undeniable ability to be persuasive. From OT2011 through OT2013, RBG stacked up an impressive 88.7% in justice concurrence. While her numbers took a bit of a nose dive in OT2014 (73%), this should only be a slight bump in the road after OT2015 is all said and done.
Breyer’s justice concurrence numbers tend to hover around the low 70s. OT2013 was his most persuasive year, putting together a 90.7% in justice’s approval. However, this one outlier of a term will not be enough to compare with the approval ratings that RBG is used to seeing.
Category Winner: Ruth Bader Ginsberg
Humor
At first glance, it is hard to believe that Stephen Breyer could even be remotely funny. In fact, the Mr. Burn’s lookalike may seem somewhat evil from the exterior. But when it comes to laugh track triggers, this guy is now the front runner to take @SCOTUSHUMOR’s OT2015 crown.
From OT2012 through OT2014 (and probably even further into the past if the Twitter records went back that far), Breyer has finished second to the Atonin Scalia in this category. Scalia was such a humor force, that often times Breyer would finish a distant second despite averaging 38 questions per term during that span. But now that Scalia’s seat lays vacant, Breyer’s path to the humor crown is in his midst. Breyer already has 39 laugh tracks in OT2015 and is well ahead of Roberts, who is in second amongst active justices with 19.
RBG, on the other hand, isn’t the jokester when it comes to oral argument. She has tallied one laugh track so far this year and that is only one off of her Term high over the last four years. While Ginsburg does have humorous side away from the bench (her approval of her "gangsta" nickname is proof alone of that), this off the record jovial isn’t enough for her to really move the needle for her in this category.
Category Winner: Stephen Breyer
WINNER: Stephen Breyer 2-1
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