The Influence of Oral Arguments
I apologize for my absence from the blog for the past week as I have been busy guest-blogging at Empirical Legal Studies, which has consumed nearly all of my recreational blogging time. I hope to be back on a full-time basis starting sometime next week. In the meantime, I would like to draw your attention to a paper, see here, that uses the oral argument grades assigned by Justice Harry Blackmun to examine various issues relating to the effectiveness and influence of Supreme Court oral arguments. In the paper, which is forthcoming in Washington University Law Review, Tim Johnson, Jim Spriggs, and Paul Wahlbeck examine a random sample of 539 cases decided by the Court between 1970 and 1994 (spanning Justice Blackmun’s tenure).
The aspect of the article that is most interesting, especially for SCOTUSblog readers, is the part of the paper that discusses those attributes of oral advocates that are most influential to the oral argument grades assigned by Justice Blackmun. Using such variables as whether the solicitor general is personally arguing the case, the amount of experience for the advocate arguing before the Court, and whether the advocate is an elite Washington attorney, former Supreme Court law clerk, or law professor, the authors run an ordinary least square (OLS) regression to determine which of the aforementioned factors most influence the oral argument grades assigned by Justice Blackmun. The results are not surprising as the personal appearance of the Solicitor General generally leads to a higher grade, and the presence of a former Supreme Court clerk or elite Washington attorney are also influential on the quality of an oral argument.
I do, however, question the grader in this case. Justice Blackmun appears to have been an especially harsh grader and the grades he assigned to several prominent legal figures are quite surprising. In the case of now-Chief Justice Roberts, who I believe is one of the great oral advocates of the past two decades, Justice Blackmun gave him only “average” grades in the twelve cases in the sample. In fact, in one of them, he said that Roberts did “better than usual,” earning a grade of six on an eight point scale. When I clerked at the Court, I always made a point of being in the courtroom for Roberts’ oral arguments as I always felt that there was much to be learned from his exceptional advocacy style and level of preparation. In addition, Blackmun gave only average grades to Justice Alito, and Justice Ginsburg did not fare particularly well in the sample either.
An interesting, but perhaps less compelling part of the paper, examines the use of oral argument by the Justices to communicate with one another. Many advocates have noted that the Justices often argue through the attorneys to make a point or persuade their colleagues, with one attorney noting that he felt more like a post office than an advocate. I personally want to give more thought as to whether their conclusions about the importance of oral arguments are consistent with the literature, conventional wisdom, and my own experiences with the Court. Nonetheless, I highly recommend giving the paper a read if you are at all interested in the role of oral arguments at the Supreme Court.
UPDATE: I have now cross-posted this paper on Empirical Legal Studies as well.
There is every reason to believe that oral argument is less important at the SCOTUS level than in any other U.S. court.
No other court has cases that are better briefed, more competent and numerous staff, smaller case loads, and the benefit of usually at least two layers, and often three, of independent analysis of the merits by disinterested judges.
SCOTUS also has nine separate judges in a position to pierce through the issues in cases that rearch the oral argument level (something not true at the cert stage), which is more than any other court in the nation. A long tradition of deep political divisions on SCOTUS gives judges an incentive to distrust their peers enough to look beyond the surface and carefully examine cases before them, rather than merely deferring to their peers in important cases.
SCOTUS is also privileged not to have to deal with cases that don’t present legal issues clearly, by not granted cert in those cases, a luxury rarely present at the appeal of right level. At the appeal of right level, a great deal of oral argument is devoted to clarifying issues that the parties, both immersed in the case, may have not made clear enough for third parties such as the appellate judges to understand, and to clarifying precisely what issues really are presented by the record.
Also, in no other court is it more likely that a deficiency in argument by counsel can be cured by arguments by amici, either private or in the person of the Solicitor General. And, because of the pseudo-partisan mindset of the judges, it is not at all uncommon for a justice favoring an outcome in a case to help along a counsel having trouble dealing with a situation at oral argument, some less commonly observed in lower level appellate courts.
Empirically, the proper measure of the effectiveness of oral argument should be an examination of when oral arguments cause a judge to change his or her position on the case.
I suspect that this happens in only a small minority of cases. This belief is indirectly supported by the observation that empirically, the amount of time a litigant spends dealing with judicial questioning at oral argument corrolates well with the ultimate outcome.
Short of direct evidence, the best way to examine this issue would probably be to identify outliers in judicial voting examines from a political basis and then to examine what happened at oral argument in those cases.
Comment by Andrew Oh-Willeke — April 6, 2007 @ 2:08 pm