Does Oral Argument in the U.s. Supreme Court Really Matter?

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 85 Pg. 323
Pages323
Connecticut Bar Journal
Volume 85.

85 CBJ 323. DOES ORAL ARGUMENT IN THE U.S. SUPREME COURT REALLY MATTER?

Connecticut Bar Journal
Volume 85, No. 4, Pg. 323
December 2011

DOES ORAL ARGUMENT IN THE U.S. SUPREME COURT REALLY MATTER

By Robert M. Casale(fn*)

I don't see the need for all those questions. I think Justices, 99 percent of the time, have their minds made up when they go to the bench.

- Justice Clarence Thomas(fn1)

The Supreme Court customarily assigns one hour of time for oral argument in cases that present substantially the same issue(s) for review. In the lawsuits challenging the constitutionality of the Affordable Care Act, however, the Court has scheduled an unprecedented five and one-half hours of time for oral argument. Given this extraordinary allotment of time for argument, a basic question arises: Does oral argument really matter?

Not surprisingly, there is no shortage of opinion parroting Justice Thomas' sentiments. Indeed, conventional bench and bar wisdom has long maintained that oral argument matters more to the lawyers than to the Justices. But, until recently, there was a shortage of data to confirm or dispute the conventional wisdom on this question.(fn2)

The release of Justice Harry Blackmun's private papers in 2004 supplied scholars with a unique data source from which the importance of oral argument could be empirically studied-the Justice's detailed evaluations of the arguments he heard in 539 cases from 1970 to 1994, his "grading" of the lawyers who presented these arguments, and his subsequent conference notes showing that points made in argument were discussed in private by the Justices. This data enabled scholars to establish that a causal link exists between oral argument and the votes Justices eventually cast on the merits of a case. Johnson and his colleagues could now demonstrate that oral argument is in fact far more important to the decision-making process than traditionally believed, though not for the reasons one might expect.

This article endeavors to answer the title question by surveying the developing body of scholarly-and informal- studies that explore the relationship between oral argument, judicial behavior and case outcome.

I. REBUTTING CONVENTIONAL WISDOM

Relying largely upon anecdotal information,(fn3) buttressed by such remarks as oral argument is just a "dog and pony show,"(fn4) the consensus of opinion among appellate practitioners has long been that oral argument is far more ceremonial than integral to Supreme Court decision-making. indeed, the comments of a number of appellate court judges foster this belief. For instance, in addition to the oft-quoted remarks of Justice Scalia and Justice Thomas, Chief Justice Warren reportedly complained that oral arguments were "not highly persuasive," and Justice Holmes rarely found arguments influential.(fn5) Chief Justice Rehnquist, in a speech before the American Bar Association's Appellate Advocacy Institute in 1996, declared that oral advocacy before the Court was too often sloppy and "slipshod."(fn6) in other words, as Ninth Circuit Judge Alex Kozinski laments, the lawyers simply "don't have as much to say."(fn7) Recent advances in the empirical study of the Supreme Court, however, are demonstrating that oral argument does in fact serve a number of important purposes in the decisional process.

This is not to say that oral argument is more (or less) important than the briefs submitted in a case. Whether the written briefs are more important to the decision-making process than oral argument is the wrong question to ask. Each serves a different function. No written brief, no matter how competently prepared, can address all of the questions or concerns a Justice may have in a complex or "close" case,(fn8) and no oral presentation, no matter how persuasive, can overcome a flawed legal position. As such, the relevant inquiry is: how does oral argument facilitate Supreme Court decision-making?

With the sole exception of oral argument, the Supreme Court functions in secret. Aside from the one-hour traditionally allotted for argument per case, no part of the Court's decision-making process is open to the litigants, the public or anyone else.(fn9) In fact, oral argument is the only time that all nine Justices appear together to discuss a case publicly. The colloquy that occurs at oral argument not only presents political scientists, legal scholars, litigants and Court watchers alike with a glimpse into the "mood" of the Court, but also leads to a number of questions for scholarly inquiry. Do Justices signal their views about a case through the questions they put to counsel?(fn10) Do Justices use hypothetical questions at oral argument strategically?(fn11) Do Justices endeavor to persuade their colleagues by the...

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