Academic highlight: Does oral argument matter?
Just a few weeks ago, Justice Clarence Thomas asked a question from the bench for the first time in over a decade. The event received front-page coverage in The New York Times, and it also spurred broader questions about the role of oral argument before the U.S. Supreme Court. Does it typically affect the outcome? Do Justices use the argument primarily to get answers from advocates, or to influence each other? Has oral argument changed over the years? Legal scholars and political scientists have tried to answer some of these questions through empirical analysis of the arguments, review of the Justices’ personal papers after their retirement, and study of the correlation between the experience of the advocate and the outcome of the case.
In a recent article in the Utah Law Review, Barry Sullivan and Megan Canty compare aspects of oral argument in ninety cases from October Terms 1958 to 1960 and eighty cases from October Terms 2010 to 2012. They found that the Justices today are more likely to speak “harshly,” as well as make more jokes than they did in the past, and that they are better prepared. Canty and Sullivan also counted the total number of words, the number of questions, and the number of non-interrogatory statements by each Justice in each period. Although the amount of time allotted for oral argument today is half that of the 1958 to 1960 Terms, the Justices’ words increased by twenty-four percent in 2010 to 2012, even as the words spoken by the arguing attorneys decreased by forty-six percent. In short, the Justices today dominate oral argument. This finding supports Thomas’s view that his colleagues are already taking up enough of the advocates’ time, which is one of his stated reasons for not speaking up more often.
Another set of scholars were interested in whether oral argument influenced the outcome. Political scientists Timothy Johnson, James Spriggs, and Paul Wahlbeck studied Justice Harry Blackmun’s extensive notes on oral argument, including the grades he gave to each of the attorneys. (Blackmun was a tough grader, giving low marks even to some highly esteemed advocates, including two who are now Justices on the Court.) They then compared Blackmun’s grades with the outcome, while also controlling for ideology and other possible influences, and concluded that the quality of oral argument does seem to affect the Justices’ votes. In other words, when Blackmun gave an advocate a high grade for oral argument, that advocate was more likely to win, even after taking into account other factors that might affect the voting.
Another article by Ryan Black, Rachel Schutte, and Timothy Johnson concluded that Justices will attempt to raise new issues in oral argument to derail cases when they disagree with the majority on the merits. Black, Schutte, and Johnson studied oral arguments in 545 cases between 1998 and 2006 and found that Justices were more likely to raise a threshold question such as standing or ripeness when it appeared they were in the minority on the substantive legal question before the Court. Although that was the result they expected, they were surprised to find that these new issues often changed the direction of the argument, forcing the other Justices and the advocates to respond, which supports the view that oral argument can affect the outcome of a case.
But not everyone agrees. Professor John Yoo recently criticized the focus on Thomas’s silence at oral argument, asserting that “lawyers contribute very little in oral argument to the Supreme Court’s deliberations.” He sees oral argument as less about addressing the legal merits and more about “feed[ing] DC journalists’ needs for soundbites and quotes for their daily articles.” Whether Yoo is correct or not, Thomas’s questions a few weeks ago appear to have done both.