How questioning constructs judge identities: oral argument about same-sex marriage

Abstract

An important but unstudied event in US legal institutions is when judges question plaintiff and defense attorneys about the issue that brings them to an appeals hearing before a state supreme court. In this article I analyze judges' questioning during the oral argument phase of the New York Court of Appeals' hearing of Hernandez v. Robles, a case concerning whether the state was violating same-sex couples' constitutional rights by denying them access to marriage. The article's purpose is to show how the content, format, and language style of judges' questioning turns constructs the judges as persons possessing particular attitudes, judicial philosophies, political leanings, and personalities. The article provides a quantitative overview of the 186 questioning turns and analyzes the discourse in selected episodes to evidence how features of questioning generate identity inferences. The conclusion considers how the oral argument phase of Appeals Court proceedings contributes to larger discourses of the law.

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