Tony Mauro applies the theory to the Roberts Court:
A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored....Why do you ask more questions of the side you disagree with? Should we think it shows unfairness -- that you're trying to impede the lawyer you want to lose? Mauro quotes Lawrence Wrightsman, author of "The Psychology of the Supreme Court," who is critical, specifically of Roberts, because "he is setting a higher standard for one side than for the other."
Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25 -- about half.
I don't think there's any unfairness here. Wrightsman's point doesn't make sense to me. It's natural to keep quiet when someone is making statements you agree with and to stop someone who's saying things that strike you as wrong. A question reveals to the advocate what your sticking point is, and a good advocate picks up on that and solves your problem -- or realizes that you are a lost vote and uses the occasion to persuade those who can be persuaded.
There's no reason why a judge should come to an oral argument with an open mind and offer the lawyers a level playing field. They've read the briefs and ought to know what they think already. The oral argument gives them a chance to probe at remaining tough spots in the argument.
You might say it's not fair to consume the time of the lawyer for the side you think should lose, but presumably all the justices ask more questions of the side they disfavor, both sides have their time consumed according to how many justices are predisposed to decide against them. If you have a disproportionate number of justices against you, maybe you have a weak argument, and if you don't, they think you do, and you'd better have some good answers. It would only be worse if they sat there is stone silence, waiting for you to shut up and leave.
There are some things that really are unfair, but you can't discover these by merely counting the questions. What is unfair is asking overlong questions for the purpose of using up the time and not letting the lawyer answer. It's also unfair to use the time to make the argument for the other side when it's not really a specific question. And it's not fair to take up much time asking questions when your mind is made up if there is another judge puzzling over questions that his decision actually depends upon.