The New Justices At Mid-February

The Supreme Court of Ohio started the new year with three new justices—French, Kennedy, and O’Neill. Justices French and O’Neill have had prior appellate experience.  Justice Kennedy was a Domestic Relations Judge.

I’ve analyzed the oral arguments of eight cases since the new justices arrived.  The subjects have been all over the place–class action certification, the confidentiality of medical records,  Ohio’s health care apology statute, the admissibility of a child’s out-of-court statements to his teachers in an abuse case, the admissibility of statements of a non-testifying co-defendant through an investigating police officer in a murder trial, the determination of who is a teacher for purposes of participation in the State Teachers Retirement System, appropriate sanctions for state discovery violations in a criminal case, and the standard for repeat DNA tests.  Justices French and O’Neill each had to recuse from one case due to prior appellate involvement.

My observations so far? Justice O’Neill is by far the most aggressive and frequent questioner of the three, and seems the most confident in his new role. (He’s also the only one of the three who won a full six year term. Both Justice Kennedy, who won an unexpired term, and Justice French, who was appointed by the governor, must run again in November of 2014.)  In addition, Justice O’Neill  seems to be going out of his way to show collegiality with his colleagues, commenting to counsel that he or she hasn’t answered a colleague’s question, or praising a colleague’s questions—especially those of Chief Justice O’Connor.

Justice French has been relatively quiet. She seems to prefer hyper-technical kinds of questions like parsing out which subsection of a statute applies, or the difference between statutory provisions, or nuances in the standard of review.

In the cases on which I’ve blogged, Justice Kennedy has not said a word. (In fairness, I certainly haven’t blogged on all the cases the Court has heard since the beginning of the year.) If I were offering her advice, I’d suggest just diving in. I came onto an appellate court with no judicial experience at all, and I still remember how nervous I was when I was able to muster up my first question. And it’s really less nerve wracking asking the questions than having to answer them.  But we weren’t on camera, and the high court is.  I’ve said many times, it’s amazing how much one can pick up watching, rather than just listening, to oral argument.

One more thing about the new justices—from the perspective of a blogger, it’s presently harder to predict the outcome of the cases after oral argument.

I’ll revisit my take on the  new justices several months down the road, after some merits decisions have come out.

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