4. Subdued liberals
The two newest justices, Barack Obama appointees Sonia Sotomayor and Elena Kagan, have shown to be no-nonsense, aggressive questioners. They questioned both sides in the argument, but neither matched the rhetorical firepower of Scalia or Chief Justice John Roberts.
Kagan and Scalia got into a debate over an argument made by "traditional" marriage supporters -- that it promotes "socially responsible" procreation among a married man and woman. Scalia suggested there was considerable disagreement over the effects on children of single-sex adoption.
Kagan: "Suppose a state said 'because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.' Would that be constitutional?"
Charles Cooper, attorney supporting Proposition 8: "No, your honor, it would not be constitutional."
Kagan: "Because that's the same state interest, I would think, you know. If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different" than denying homosexuals from marrying?
Kagan: "I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."
Scalia, matching humor with humor: "I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, Are you fertile, or are you not fertile?" Laughter in the courtroom. "I suspect this court would hold that to be an unconstitutional invasion of privacy, don't you think?"
Kagan's questioning was sharp and focused and put the lawyer on the spot. But it was delivered in a methodical, even low-key fashion. She wanted an answer but was not especially eager to score points with the audience or the public at large.
Contrast that with Scalia, who seems to gleefully play to the crowd. He topped Kagan's funny remark with another of his own, determined it seemed to get the last laugh.
Among the justices themselves, being either an aggressive questioner or a thoughtful, more subdued questioner does not earn you points either way when it comes to voting on the merits. Each has a personal style. But public perception does count, and many progressive legal activists have lamented the fact that none of the four more liberal justices, who include Ruth Bader Ginsburg and Stephen Breyer, have the personality or inclination to be a swashbuckler in public court sessions -- giving a full-throated voice to their views.
5. Courtroom flavor
The Supreme Court has a distinct aura when big cases are argued. The audience of several hundred spectators is juiced, the justices seem more energetic and engaged in their questioning.
That was true on Tuesday.
Celebrities like actor/director Rob Reiner (an original legal opponent of Proposition 8) added to the flavor. The competing rallies outside the court, and the several hundred people waiting in line in the cold for a precious court seat, completed the drama.
More arguments are scheduled for Wednesday on a challenge to a federal law known as the Defense of Marriage Act. That 1996 legislation denies a range of financial and other benefits to legally married same-sex couples.
After that, the court will quiet down once more.
The justices will sit down this week in private session -- just the nine of them -- and secretly vote at least preliminarily on these cases. Opinion-writing will be assigned, and then the task of crafting a ruling acceptable to a majority will commence.
The outcome will probably not be known until late June.