THE NEW ORAL ARGUMENT: JUSTICES AS ADVOCATES.

Author:Jacobi, Tonja
 
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INTRODUCTION

Oral arguments before the U.S. Supreme Court now receive sustained attention from popular commentators, (1) expert Court watchers, (2) legal scholars, and social scientists. (3) Although some characterize oral arguments as just a "dog and pony show," (4) scholars have shown that they constitute an important part of the judicial decision-making process, even changing the outcome of cases. (5) Recently, empirical studies have shown that case outcomes can be predicted in part based on judicial behavior at oral argument. (6) There is a popular view among Court watchers that the nature of oral argument has changed in terms of how substantive the discussion is, how influential the process is, and whether oral argument is an effective vehicle for delving into the substance of the nation's most contested legal conflicts. (7) Beyond the notion that something has changed, however, there is no real consensus as to whether oral argument in the current era is more rather than less substantive, or more rather than less influential, than in previous eras. Theories as to exactly when oral argument changed and what caused that change are also fragmented, although they tend to focus on the arrival of certain strong personalities to the bench; most commonly commentators point to the entrance of Justice Scalia, (8) others focus on the retirement of Justice Stevens, (9) or even the recent arrival of Justice Gorsuch. (10)

In this Article, we test an alternative theory about how, when, and why Supreme Court oral argument has changed. Our prediction is that oral argument is more than simply a window into the Court's processes; we predict that changes in oral argument reflect changes in society more broadly. In particular, we hypothesize that as American politics and society became distinctly more polarized in the mid-1990s, so too did the Court. (11) U.S. politics witnessed a sharp and sustained increase in political polarization with the landslide Republican victory in midterm congressional elections in 1994. The "Republican Revolution" that began in the 104th Congress brought an enormous number of freshmen congressional representatives to Washington in 1995 who were unwilling to be bound by traditional norms of seniority and bipartisan cooperation. (12) Subsequently, partisan polarization within Congress massively increased (13) and, mirroring this, the American public also became more ideological and more polarized--studies show that the Republican Revolution marked the beginning of greater ideological division, less cross-party agreement, (14) and greater antipathy between partisan groups. (15)

The theory we develop in this Article has three key claims: first, that judicial activity at oral argument has increased significantly; second, that the nature of that activity is directed toward greater judicial advocacy; and third, that this shift in behavior constitutes a new paradigm that can be dated as beginning in 1995 as a result of the political polarization in the other branches of government and the public at large. To explore the first claim, we develop five key measures of judicial activity: the number of words used by the justices, the duration of judicial speech during oral argument, the number of questions asked by the justices, the number of what we call "non-questions" posed, and the number of interruptions. We find that justices in the modern era interrupt more, speak more, and leave far less time for the advocates to present their case. (16) In addition, a significant increase in non-questions also provides initial evidence of the second claim, as this indicates that the justices are now arguing positions rather than querying advocates. We also establish our second claim by showing that the justices do not pursue these activities in a neutral fashion: rather, they systematically direct their challenging comments to their "foes" and their leading questions to their "friends." They step in to protect the advocate whom they ultimately support from tough challenges from their colleagues, or directly answer or rebut those tough questions and comments themselves. We establish the third claim by showing that in every single measure we employ but one, (17) there has been a statistically significant and dramatic change starting in 1995, corresponding with the well-established societal shift toward greater political polarization. This is not merely a question of increased judicial activity in the abstract; 1995 marks the beginning of a sustained increase injudicial behavior that can only fairly be characterized as advocacy.

By their nature, our descriptive claim and our causal claim can only be established using sophisticated empirical analysis over a broad sweep of history, taking into account justice characteristics, advocate characteristics, and case specific features. We are able to systematically account for the effect of gender, ideology, and experience of both the justices and the advocates; the political and legal salience of the cases; and outcome variables, such as judicial votes, opinion authorship, and being in the dissent or the majority. We constructed a dataset of the text of every Supreme Court oral argument from 1960 to 2015, supplemented with other sources of biographical information about advocates and justices, as well as case outcome votes. We analyze over 1.4 million separate speech episodes in over 6000 cases over the last fifty-five years of oral arguments. We demonstrate that oral argument has changed fundamentally since the 1960s and that this change corresponds with the sudden increase in political polarization in the U.S. Congress and public opinion that began in earnest in 1995. The essential nature of this change is that in the modern era, justices behave more like advocates.

We conduct multivariate regression analysis to test that judicial activity has significantly increased, and that judicial advocacy has displaced judicial inquiry at oral argument. We also perform structural break analysis on our key judicial activity variables to confirm that 1995 marked a genuine discontinuity and was not simply part of a gradual historical transformation. Prior to conducting our detailed statistical analysis, we demonstrate all of our key effects with graphical analysis. This provides an accessible way for the reader to visually confirm that important changes were occurring in 1995. Throughout, we pay close attention to whether a similar change is discernable in 1986, since two separate competing hypotheses suggest that year should be significant in explaining the change in oral argument. (18) Justice Scalia joined the Court in 1986 and that was also approximately when the Supreme Court bar began to be manifestly more concentrated and professionalized. We find no evidence for significant changes at oral argument associated with 1986, except for some changes to the gender and experience of the Supreme Court bar; there is no indication that this explains the changes in judicial behavior at oral argument. (19) These graphs allow readers to make their own assessment of competing claims as to when the new oral argument began, such as 2010, with the retirement of Justice Stevens, or 2002, with the start of the influential commentary site, SCOTUSblog, which could conceivably create an observer effect, (20) or with the gradual development of Oyez archive of Supreme Court cases which, by making transcripts and recordings of oral arguments far more accessible, could have increased the attention paid to the Court, and so increase the incentive for justices to be more performative and less deliberative. (21)

Individually, these findings answer many specific questions about oral argument; collectively, they tell us something vitally important about the broader changing judicial role. Political scientists and legal realists long ago established that politics influences the courts to a large degree. (22) This view is tempered, but not contradicted, by more recent empirical work that shows that law matters too. (23) If the judiciary is to avoid being seen as nothing more than a collection of politicians in robes, it must retain the appearance of propriety and impartiality. (24) The finding that judges are acting more and more as advocates of particular views, rather than arbitrators of a contest between the parties' representatives, may be unsettling to some. The finding that they have taken up this role in response to the partisan contests roiling the rest of the country, doubly so. Each of these conclusions presents a new challenge to the notion of judicial impartiality. They show that political division is shaping not only judicial votes but also how the justices conduct the information-gathering process itself. The justices are not simply becoming more active at oral argument, they are advocating. That conclusion requires a rethinking of the judicial role.

In Part I, we explore background issues and literatures relevant to our investigation and describe the setup of our inquiry. First, we briefly describe the significance of oral argument and how it has changed from the 1960s to the present. Then, we set out when and why the nature of oral argument changed, presenting our polarization thesis and our empirical approach. Finally, we describe our data and approach. In Part II, we show how judicial activity has changed over time, with the justices becoming increasingly active at the expense of advocate speaking time. In Part III, we show that this activity can be fairly described as advocacy by showing how it interacts with judicial ideology in general and with whether the justice agrees with the side that the advocate represents in the case at hand. In Part IV, we undertake multivariate regression to determine the size and significance of the effects we identify in the previous Parts, and control for numerous factors that could affect the analysis. We conclude by suggesting how our analysis...

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