Oral argument in the early Roberts court: a qualitative and quantitative analysis of individual justice behavior.

AuthorPhillips, James C.
  1. INTRODUCTION

    President Obama's recent nominations of Justices Sotomayor and Kagan to the Supreme Court stirred up support among Democrats, opposition from Republicans, and attention from the media, placing the Supreme Court again in the national consciousness. In addition, the makeup of the Supreme Court is under intense scrutiny internationally as cases with global implications, such as those involving Guantanamo Bay detainees and Mexican nationals on death row in the United States, make up an increasingly prominent portion of the Court's docket.

    In the context of politics, discussion about Supreme Court justices often focuses simplistically on whether they are liberal or conservative. The reality, however, is more nuanced. It has been posited that justices tend to drift ideologically during their time on the Court, and that most often the drift is from conservative to liberal. (1) But perhaps more important than characterizing justices with broad political labels is understanding how they actually decide cases and justify those decisions. Clearly, each justice on the Court has a certain style of judging that affects the results of the cases that reach the Court. Generally, scholarly attention has been paid to the Court's published opinions, which are (1) collective works not only among nine justices but also their approximately three dozen law clerks; and (2) not themselves decisions but rather justifications for decisions reached earlier. The actual decisionmaking process takes place behind closed doors with little public insight available. Justices read briefs in their chambers and hold decision conferences with no one present other than themselves.

    But there is one aspect of the process of judging at the Court that is open to the public and that might give insight into the decisions reached: oral argument. In the Supreme Court, oral argument is the only time all the justices appear together to consider a case in the public eye, and oral argument is the sole public face of the Court's work between the time briefs are submitted and opinions are published. Hence it is of great importance, and yet it remains obscure and little understood. The Court communicates with itself and the lawyers in deciding a case, and oral argument provides a first-hand look at these interpersonal and group communication processes.

    With that reality in mind, this paper will progress as follows: Part II will explore what justices themselves have said about oral argument's function and value, what scholarly research has uncovered about oral argument, and how oral argument could predict justices' votes. Part III will describe how the data for this study was collected and analyzed. Part IV will provide a comparative picture of the justices' oral argument behavior, and then look specifically at each justice and how that justice's behavior may or may not be indicative of voting on the merits. Finally, Part V will summarize the paper's findings, weaknesses, and contributions.

  2. BACKGROUND

    1. Justices on Oral Argument

      A review of justices' comments on the function and importance of oral argument can divide justices into three schools of thought: (1) oral argument is important in helping decide cases; (2) oral argument's main function is to communicate with other justices; and (3) oral argument has little to no value. Within the camp of justices arguing that oral argument helps decide cases there is delineation between those who see oral argument as a general help, and those who see oral argument as important in close cases, often dealing with obscure law. Interestingly, it is generally justices from previous eras who fall into the first camp, while more recent justices view oral argument's value in determining cases as limited to a few circumstances, possibly hinting at a shift in the function of oral argument over time. (2)

      Many of the current or recent justices indicate oral argument is used as a vehicle for communication with their fellow justices, though less-recent justices have noticed this function as well. Justice Ginsburg outlined five functions of justices' questions and remarks during oral argument:

      * to let counsel know what troubles the court, or at least the questioner, about the case or the issue on which counsel is holding forth;

      * to satisfy the court on matters the judges think significant, issues the judges might puzzle over in chambers, and resolve less satisfactorily without counsel's aid;

      * to cue counsel that an argument he or she is pursuing with gusto is a certain loser, so that precious time would be better spent on another point;

      * to assist counsel to strengthen a position in hopes of persuading one's colleagues; and

      * to nail down a concession that will show up in an opinion, perhaps in a footnote. (3)

    2. Research on Oral Argument

      Research to date on oral argument by scholars, attorneys, and observers of the Court can generally either be classified as anecdotal or case-study in nature, or as more quantitatively empirical. (4) From more anecdotal research, often geared towards practicing attorneys, others have found that justices may play the role of antagonist or protagonist during questioning, (5) justices may make questions in form only with the purpose of stating their opinion, (6) justices use hypothetical questions to communicate with each other, (7) justices use oral argument as a pre-conference, (8) justices hostile to one side will ask the majority of questions to that side and justices supportive of a side will often jump in to help that side's attorney; (9) oral argument is similar to the Socratic method with the justices as professors and lawyers as students, (10) and justices try to persuade their colleagues via their comments and questions in oral argument. (11) More empirically rigorous research has discovered that justices tend to use statements more than questions in oral argument; (12) that justices strategically interrupt counsel in order to "score rhetorical points"; (13) that justices' questions can be divided into either affirming, inquisitive, or challenging; (14) and that justices use oral argument to find out what their colleagues are thinking on a case. (15)

    3. Predicting Case Outcomes from Oral Argument Behavior

      Many have taken note that justices quite often foreshadow their leanings in a case during oral argument. (16) In a qualitative sense observers of the Court have found that justices' comments and questions often predict voting patterns, (17) that justices speak more to the side they will eventually oppose, (18) that justices are more hostile to the side they vote against, (19) and that justices are more unsympathetic to the side they do not vote for on the merits. (20) In more quantitatively oriented studies, Timothy Johnson and colleagues have determined that when the Court speaks more to one side, or uses more unpleasant language to one side during oral argument, the probability of that side winning plummets. (21) Due to the established link between oral argument behavior and voting on the merits, Supreme Court scholar Lee Epstein has cautioned against the use of prediction models that fail to take into account oral argument behavior. (22)

      Thus, despite conventional notions, information gathering is just one of a few functions of oral argument, and likely not its main function. Instead justices spend a large amount of time asking pseudo-questions or making statements in order to influence each other. These behavioral patterns do appear to have predictive ability when it comes to which side ultimately prevails, but we still do not know how individual justices are behaving, and how such behavior might differ both across justices and in the ability to predict each justice's eventual vote.

  3. DATA MEASUREMENT AND COLLECTION

    1. Measuring the Seeking of Information

      In order to create a valid and reliable measure of information seeking, literature from psychology, law, (23) rhetoric, sociology interpersonal communication, and linguistics was analyzed. (24) Based on this research on interrogation, questions can be first broken into three groups: genuine questions, counterfeit or pseudo-questions, and non-questions. (25) Dividing up these three categories further, genuine questions include open-ended questions (wh- questions), (26) the highest degree of information seeking; close ended, or bipolar, questions, the lowest degree of information seeking for genuine questions; (27) and disjunctive questions, which are a hybrid of open- and closed-ended questions. (28) For pseudo-questions, leading questions appear to contain a bit more information-seeking qualities than rhetorical questions, as they can still be answered in the affirmative or the negative, whereas rhetorical questions do not really elicit a response, though, if misinterpreted, might be met with an answer. (29) Finally, non-questions, if excluding pseudo-questions, would consist of declarations. From these question types and their relative degrees of information seeking, the six-point scale shown in Figure 1 was created. With this ordinal scale each sentence uttered by a justice in oral argument can be given a numeric score so that an average information-seeking score can be generated for each justice per side that they verbally engage. The higher the information-seeking score (ISS) a justice receives, the more information seeking he or she appears to be engaging in. (30)

      [FIGURE 1 OMITTED] (31)

    2. Case Selection

      To avoid the potential problem of selection bias found in our previous study, which only looked at cases with a high degree of ideological salience, oral argument transcripts to be included in the study were selected using random stratified sampling to ensure cases with varying scenarios. The five case types sampled for were (1) solicitor general as amicus party, (2) solicitor general as main party, (3) non-solicitor general amicus party, (4) female attorney arguing, and (5) no amicus or solicitor...

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