Comments on: The Influence of Oral Arguments http://www.scotusblog.com/wp/the-influence-of-oral-arguments/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Andrew Oh-Willeke http://www.scotusblog.com/wp/the-influence-of-oral-arguments/comment-page-1/#comment-11078 Andrew Oh-Willeke Fri, 06 Apr 2007 18:08:50 +0000 http://www.scotusblog.com/wp/uncategorized/the-influence-of-oral-arguments/#comment-11078 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. 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.

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