Academic highlight: The rise of the “hot bench”: what it means for the Supreme Court and democracy
on Sep 6, 2019 at 3:15 pm
Terry Skolnik is Assistant Professor at the University of Ottowa, Faculty of Law.
Beginning in the mid 1990s, the dynamics of Supreme Court hearings started to change significantly. Many of these changes persist today. Tonja Jacobi and Matthew Sag’s research demonstrates that the justices now speak more during oral argument than they did in the past, while the parties speak less. Some of the justices’ questions advocate positions as opposed to seeking information. The advocates are more frequently interrupted by the justices. Jacobi and Dylan Schweers have also shown that judicial interruptions in the Supreme Court have a gendered dimension. Their research demonstrates that during the Roberts Court era, female justices were far more likely than male justices to be interrupted by their male colleagues or by male advocates. As Jacobi and Sag observe, many of these changes marked the dawn of the “new oral argument” that is now upon us – a shift in the nature of oral argument characterized by the rise of the hot bench.
The term “hot bench” implies that the justices are active during oral hearings and engage in a form of dialogue with the advocates. The justices press the advocates with hypothetical scenarios and questions to test the potential implications of an advocate’s position. The justices inquire about the bounds of some constitutional right or principle. They question whether a prior judicial decision really stood for that principle or whether the court really made that distinction. When the bench is “hot,” appellate hearings can resemble a form of active and exciting dialogue between the justices and the parties. When advocates face a “cold” bench, they plead their case with little interruption, questioning or judicial activity. The rise of the new oral argument raises a fundamental question: Is a hot bench a good thing?
In a forthcoming Boston College Law Review article entitled “Hot Bench: A Theory of Appellate Adjudication,” I explore the implications of a hot bench. I argue that the new oral argument has serious implications for appellate adjudication and for democracy. In short, I contend that a hot bench can serve some functional purposes and advance certain values that written arguments and cold benches generally do not. Yet I also caution that a hot bench risks needlessly sacrificing certain functional and democratic values in the pursuit of others – sacrifices that put into question appellate judges’ sacrosanct role and appearance as impartial adjudicators in a constitutional democracy. I conclude with certain concrete proposals as to how judges, including Supreme Court justices, can maximize the democratic and functional virtues of active oral arguments, while avoiding the worst vices of a hot bench.
To unpack this argument, let me begin by discussing some virtues of active oral hearings. From a democratic standpoint, a hot bench can: (1) afford greater transparency into judicial decision-making; (2) increase judicial accountability; (3) promote constitutional dialogue; and (4) orient judges towards the need for judicial minimalism.
Consider first how a hot bench can foster transparency in judicial decision-making. Many parts of the adjudicative process are shrouded in secrecy. Judicial deliberations and post-hearing conferences are confidential. Law clerks, with whom the justices work closely, are sworn to secrecy. The final draft of a judicial decision has been refined and improved over time. Oral argument, however, constitutes one of the most spontaneous and unfiltered parts of the appellate adjudicative process. When the bench is active, we can assess the justices’ understanding of the case before them, their knowledge of applicable legal principles, and their views about the law and the Constitution. Because oral hearings are open to the public, audio recorded, and transcribed, everyone can assess whether active justices appear to be as fair and impartial as they claim to be. A hot bench can thus foster transparency in a manner that permits the public to judge its judges.
Second, active oral arguments allow for a new form of judicial accountability. Given the rise of quantitative research into oral argument – especially Jacobi’s pioneering empirical work – we know that during the Roberts Court era, male justices were far more likely to interrupt female colleagues and female advocates compared to male colleagues and male advocates. A hot bench helped expose the problems of gendered interruptions and other negative judicial tendencies. Furthermore, the wealth of information produced during oral argument is used to hold the justices publicly accountable. Since Jacobi’s research on gendered interruptions, Chief Justice John Roberts has been asked publicly about how to resolve that problem. A hot bench allows us to measure whether interruptions – gendered or not – decrease or increase over time. When justices are active, we can assess to what degree they ask supportive versus antagonistic questions to a party whose position is consistent with their ideological tendencies.
Third, a hot bench enables a form of constitutional dialogue between the judiciary, the parties, and representatives of the other branches of government. Active oral hearings provide a live opportunity for the justices to engage in an open and public exchange with these different stakeholders in order to collectively steer the development of the law and the Constitution.
Fourth, active oral arguments can orient judges towards the virtues of judicial minimalism, a theory of adjudication advanced by Cass Sunstein. Judicial minimalism entails that judges decide no more than is required in a given case. The theory strives to respect the separation of powers, to reduce future uncertainty and error costs, and to ensure that other branches of government solve matters in which they possess greater expertise or institutional capacity. When the justices ask hypothetical questions during oral argument, they are given a sense of how committing to a given principle or outcome suggested by a party may misfire in the future. Answers to hypothetical questions – or the lack thereof – can alert justices to the difficulties in adopting an adjudicative path that may prove counterproductive. A hot bench can remind justices of what they do not know and cannot predict. In doing so, it can steer the court towards the advantages of deciding cases in a more minimalist fashion.
From a functional (or instrumental) standpoint, a hot bench can also (1) optimize justices’ limited information-gathering capacities and (2) assist them in the coalition-building process. Active oral hearings help justices acquire information that is most responsive to their concerns. They can use oral argument to test out certain principles or outcomes without having to commit to them. A hot bench can also assist the justices in reaching majorities and avoiding the confusion inherent to plurality opinions. The justices’ questions serve as a valuable screening and signaling mechanism that is essential to the coalition-building process. Even if judges do not initially agree about which solution is best, they can far more easily agree about which solutions are very bad. Using hypothetical questions, they begin to form majorities by first screening out the most error-prone or unpredictable ways to resolve a case. The justices’ questions can then signal alternate ways of resolving the case that are more faithful to the tenets of judicial minimalism or promote agreement amongst judges with opposing ideological preferences.
Here is the problem, though. Even if a hot bench is capable of advancing these types of democratic and functionalist values, that does not mean that it will. True, active justices may promote transparency and accountability in judicial decision-making. But those gains may come at the price of the parties’ capacity to make their case publicly, or at the expense of the justices’ perceived impartiality in decision-making.
Part of the problem with the new oral argument is that there are many vices to a hot bench. In some contexts, the justices will needlessly sacrifice certain democratic or functionalist values in pursuit of others. In an effort to avoid errors or prevent the floodgates from opening, the justices may monopolize the parties’ own pleading time in a manner that corrodes the democratic value of public participation in decision-making. The justices may sacrifice the value of political equality through gendered interruptions that seek greater clarity on some point. They might put into question their own perceived impartiality by asking questions that advocate positions and have no information-seeking value.
Because the hot bench shows no signs of disappearing, what can be done to capitalize on the benefits of active oral arguments while avoiding its burdens? Barry Sullivan and Megan Canty have argued that the justices can allocate a specific amount of uninterrupted pleading time to the advocates at the beginning and end of hearings, which gives them greater latitude to shape the course of the proceedings. Sullivan and Canty also suggest that it may also be possible to extend – even marginally – the amount of time allocated for oral argument. Another option is for the associate justices to communicate their most pressing concerns about the case to the chief justice in writing before the hearing takes place. The chief justice can then inform the parties of those concerns prior to oral argument. This would allow the parties to focus their pleading on the most important aspects of the case, while also respecting the convention that the justices do not discuss the cases prior to the hearing.
On a more general level, the justices should strive to address negative tendencies revealed by empirical research into oral argument. If research demonstrates that the justices’ questions too frequently interrupt one another or the parties, advocate positions from the bench, or prop up the arguments of parties with whom they are ideologically aligned, the justices should use that research as an opportunity for self-correction. Since Jacobi and Sag’s study on gendered interruptions, of which some of the justices were aware, recent research posted on the SCOTUS OA Blog shows improvements in the frequency of gendered and nongendered interruptions in the 2018 term compared to the previous year.
A hot bench carries certain advantages and drawbacks that written arguments and cold benches do not. If the justices truly hope to promote the democratic and functionalist potential of active oral hearings while avoiding their most negative aspects, they should keep their interventions as judicious and judicial as possible. The judiciary’s role in a constitutional democracy – and the very values that underpin both democracy and justice – demand no less.