There are still people who think that the law is some objective thing, and that the job of a Supreme Court justice is to merely access this objective field of knowledge and pronounce its judgment.

At this point, those people sound to me like the Ancient Aliens guys who talk about how Einstein could access the Akashic Record that is supposedly the repository of all intergalactic knowledge. It’s a naivete that borders on foolishness. Justices are not in the business of realizing objective truths, they’re here to pick the outcomes they prefer and backfill the legal arguments to achieve their preferred result. Bush v. Gore, Bush v. Gore, Bush v. Gore.

Maybe things used to be different. A new study looked at 6,000 transcripts from oral arguments between 1960 and 2015, and found a clear break around 1995. From The National Law Journal:

During the last two decades, U.S. Supreme Court justices have become less like traditional inquisitors during oral arguments and more like advocates for their own positions, a reflection of a politically polarized Congress and society, according to a new empirical study… The number of questions asked by the justices has remained “remarkably constant” since 1995 even as the number of words used increased significantly, according to the study. But those extra words “are being devoted to comments and statements, not to inquiries of the advocates,” according to the authors of the study “New Oral Argument: Justices as Advocates.”

“In the post-1995 period, with the justices as a whole still averaging approximately 75 questions per case, they now pose almost (and occasionally more than) 200 non-questions per case; that is, the justices now devote only one-third of the speech activity to questions, and well over double that to making comments,” the study found.

That sounds… accurate.

The one thing history will prove Clarence Thomas right about is that speaking during oral arguments is generally worthless. The answer to any true question the justices have can be found in the voluminous briefs. Talking is really just a chance to advocate for your position, to your colleagues or for the press. But since most of the justices probably know how they’re going to rule before the lawyers start yammering, the whole process is just a show.

Even if you wanted to roll things back to pre-1995 standards, I’m not sure there’s a way to do so. We’re a sharply divided country on key issues like: “Are women people, or incubators with mouthparts?” “Do schoolchildren need to be shot to death to protect your right to violently overthrow the government when the time comes?” And “How can I NOT have gay sex if we’re going to just let that be okay now?”

These aren’t really legal questions, they are moral ones. But since we can’t broadly agree about who we are as a people, these issues will keep getting kicked to nine unelected lifetime appointees who think they know the answer.

So, I don’t know what to tell you. If you want your Supreme Court justices to behave like inquisitors, don’t make them responsible for starting/stopping the Inquisition. Because it’s impossible to have an objective, impartial opinion on which group of people deserves to be burned at the stake.

Supreme Court Justices Are Ever More ‘Advocates,’ New Law Study Contends [National Law Journal]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.