Oral Arguments Before the Supreme Court

Abstract

Of all the activities done by the Supreme Court justices as they form their decisions on important cases, the oral arguments are the only step in the process visible to the public. Despite this transparency, critics of the oral argument phase question its usefulness, claiming that the one-hour arguments provide much less information to the justices than the 50-page briefs; furthermore, the justices have already made up their minds. This book challenges these claims and takes the position that the oral arguments are a significant part of the decision-making process. Justices can test the limits of claims made by the advocates in their briefs. Also, the argument procedure provides an opportunity for justices to sense the strength of feelings held by the other justices, and even try to persuade their colleagues as they question the advocates. Each oral argument offers a window into the justices’ thinking and even their unique personalities. This book gives empirical answers to a number of questions about the operation of oral arguments. Do justices “telegraph” the way they will later vote by the types and frequency of questions they ask each side? Does each justice have a distinctive way of questioning? Are some types of advocates more successful than others? Does it matter who the chief justice is?

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