DOES QUALITY MATTER? THE INFLUENCE OF PARTY BRIEFS AND ORAL ARGUMENTS ON THE U.S. SUPREME COURT.

• Author: Corley, Pamela C.

Briefs are the primary mechanism driving decision making in current appellate advocacy--at least according to advocates, judges, and scholars. Many argue that they provide the most substantial information to the court on which the justices base their decisions. To this point, former Assistant Solicitor General Carter Phillips, who has argued over 80 cases before the United States Supreme Court, asserted "[t]he decision-making process is 99.9 percent based on the briefs. The oral argument is not going to be the basis on which you are going to drive somebody to your side of the case very often, if ever." (1) Along similar lines, Chief Justice John Roberts of the United States Supreme Court said in an interview, "The oral argument is the tip of the iceberg--the most visible part of the process--but the briefs are more important." (2) Justice Ruth Bader Ginsburg agreed: "Of the two components of the presentation of a case, the brief is ever so much more important. It's what we start with; it's what we go back to... oral argument is important, but far less important than the brief." (3) The potential for briefs to play major roles in appellate outcomes is also described in scholarly articles on the subject as well. (4)

Professors Timothy Johnson, Paul Wahlbeck, and James Spriggs published a seminal article examining how advocates' oral argument prowess correlates with success before the Court. (5) To do this, the authors utilized a unique dataset composed of Justice Blackmun's oral argument grades based on his assessment of the quality of advocates' oral arguments. (6) The authors' analysis shows a strong correlation between Justice Blackmun's argument scores and justices' votes on the merits. (7) This study was a major advance in our understanding of the role of oral arguments in Supreme Court decision making.

One important caveat of this study is that the study authors do not control for the role of merits briefs. Due to the general legal consensus on the importance of briefs, this empirical element is a potentially important missing piece in the analysis of how the justices come to their decisions since we know that justices rely on both oral arguments and party briefs. (8) Do oral arguments still matter after controlling for party briefs? Are briefs actually more important than oral arguments, as advocates and the justices claim?

Since Blackmun did not measure brief quality the same way he graded oral arguments, there was no overall parallel measure of brief quality at the time of the study by Johnson, Wahlbeck, and Spriggs. (9) With recent advances in software, however, the quality of briefs can now be quantified and analyzed alongside the quality of oral argument. This article applies tools from a piece of software called BriefCatch to provide writing quality scores to the same set of cases analyzed in Johnson et al.'s 2006 article. In doing so we examine the comparative role of briefs and oral argument quality in Supreme Court decision making. While BriefCatch grades are not a perfect companion to Justice Blackmun's grades for oral arguments, especially because they are calculated exogenously from the justices, as opposed to Blackmun's grades, it provides us a measure for brief quality and in doing so allows us to extend the study of the mechanisms affecting Supreme Court decision making beyond what was previously possible. In addition to measuring the writing quality of briefs, we also include another measure of brief quality--the number of Supreme Court precedents cited--in order to capture the legal authority relied on in the brief. (10)

We find that, after controlling for elite attorneys and the quality of oral argument, a higher BriefCatch grade is not associated with the final vote on the merits; however, there is an association between how well-grounded the brief is in precedent and the final vote on the merits. Furthermore, our study provides continued support for Johnson et al.'s finding that the probability of a justice voting for a litigant increases dramatically if that litigant's lawyer presents better oral arguments than does the competing counsel, a result that holds even after controlling for the quality of the brief. (11) These results are important for three reasons. First, given that the workings of the Court are often shrouded in mystery and the Court was designed as the primary body of the federal government with responsibility to interpret the Constitution, it is important to understand the different components of its decision-making process. Second, the findings inform our understanding of judicial behavior by helping us better gauge the importance of briefs and oral arguments in the decision-making process. The fact that judicial decisions are associated with quality lawyering before the Court suggests the value of looking beyond ideology and strategy to explain Supreme Court decision-making. (12) By showing an association between winning and quality lawyering, we offer practical guidance to practitioners. Our findings suggest important implications for the role of persuasion in politics more generally. For example, recent research suggests that political persuasion in social media is most likely to occur when people are presented with well-reasoned arguments. (13) Thus, it is important to understand whether quality argumentation matters, both orally and in writing.

We begin by examining the role of briefs in the Supreme Court and the development of measures for the quality of briefs in the Court's decisions. We then discuss some of the current analyses of oral arguments to clarify our current understanding of their role in the decision-making process. We then present our data and methods, our analyses that incorporate briefs into the decision-making process, and lastly present our concluding thoughts.

1. THE IMPORTANCE OF BRIEFS

   While briefs clearly play a large role in the Supreme Court advocacy process, this is a role that evolved greatly over time. Historically, briefs were not even necessary in Supreme Court cases and it was not until 1821 that parties before the Supreme Court were formally required to submit briefs. (14) In fact, according to former Chief Justice William Rehnquist, "It would seem that inside of a hundred years the written brief has largely taken the place that was once reserved for oral argument. For that reason, an ability to write clearly has become the most important prerequisite for an American appellate lawyer." (15)

   In the early years of the Court, there were few limits on the time allotted to oral arguments. Arguments in McCullogh v. Maryland, (16) for instance, ran for six days and ended on a Saturday afternoon. (17) Rehnquist and others explained the rise in the prominence of Supreme Court briefs relative to oral arguments as a time-saving mechanism, since the justices could not spend as much time in oral arguments as their case dockets grew. (18) This time pressure minimized the amount of information advocates could convey during the oral proceedings. Briefs were and are therefore a necessary mechanism of efficiency for the Court. They allow the justices to study the parties' arguments wherever they go and on their own time. (19) They also allow them to distribute their workload among their clerks in ways not possible with oral arguments. (20)

   As briefs became a focal point for modern appellate advocacy, lawyers and judges saw less room for oral arguments to add dimensions beyond the parties' arguments already presented in their briefs. (21) Since judges see parties' briefs before oral arguments, they often use them to prepare for arguments and to form initial opinions about the merits of cases. (22) As Black, Owens, Hall, and Ringmuth write: "[B]riefs provide attorneys their only real opportunity to present their best arguments to the Court without interruption. Many judges formulate lasting impressions of a case from the briefs alone." (23) Especially in the last several decades, justices dominate oral arguments with their questions, curtailing advocates' abilities to get through many of their prepared points. (24) This questioning helps the justices focus oral arguments on points not clarified in the briefs but does little to allow advocates to get to their most salient propositions.

   One piece of evidence supporting the importance of briefs is the justices' regular citations to them in their opinions. During the 2018 Term for instance, the justices cited to briefs in approximately 87 percent of argued cases. (25) These citations may reveal keys to the justices' decisions, as this example from Mathis v. United States illustrates:

   In the real world, there are not many cases in which the state courts are required to decide whether jurors in a burglary case must agree on the building vs. boat issue, so the question whether buildings and boats are elements or means does not often arise. As a result, state- court cases on the question are rare. The Government has surveyed all the state burglary statutes and has found only one--Iowa, the State in which petitioner was convicted for burglary--in which the status of the places covered as elements or means is revealed. See Brief for United States 43, and n. 13. Petitioner's attorneys have not cited a similar decision from any other State. (26) Still, as behavioral studies have shown, justices have unique ideological dispositions toward many issues the Court hears that may strongly impact their decisions. (27) Briefs give the justices the ability to test whether their ideological views align with particular parties' arguments as they help justices form their initial impressions in cases. In this way, the justices may well know whether their views align with a parties' argument before the case is argued. The robust connection between justices' ideological values and votes further accentuates the role that briefs may play in forming justices' views in cases. (28) While none of these studies...