There just seems to be a misunderstanding here about what arguments can and can’t do. Rosen may think that an alternative argument is a better argument—and his theory sounds reasonable to me—but it’s very hard to see how an alternative argument would actually “have made it harder” for the conservative majority to reverse decades of precedent. What would prevent the conservative majority from reversing decades of precedent would be if [the conservative justices] didn’t want to gut campaign finance regulation. Insofar as they do want to do that, Elana Kagan can’t stop them with the sheer force of her argument.
Yglesias may indeed be correct in this instance. But it’s worth noting the evidence that oral arguments can matter:
We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer’s oral argument affect the justices’ final votes on the merits? We answer these questions by utilizing a unique data source—–evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun’s grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun’s ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument. We further show that the probability of a justice voting for a litigant increases dramatically if that litigant’s lawyer presents better oral arguments than the
competing counsel. These results therefore indicate that this element of the Court’s decisional process affects final votes on the merits, and it has implications for how other elite decision makers evaluate and use information.
That is from a 2006 paper by Timothy Johnson, my GW colleague Paul Wahlbeck, and James Spriggs. They examine a random sample of the Court’s cases from 1970-94 (539 in all). The Blackmun data are very cool.
To be sure, a lawyer’s oral argument is more powerful among justice who are ideologically closer to the lawyer’s position. But even justices on the opposite side can be influenced by a “good” argument.
Of course, these results are average effects across a set of cases, and do not necessarily imply that oral arguments are effective in every case, such as the one before the Court this week. As Yglesias notes:
But the whole reason people are now assuming that the court will overturn precedent is that at oral arguments the Justices gave the impression of having already made up their minds.
That may be true. But, as Rick Hasen—who is also skeptical that the Court will uphold the Austin precedent—states:
As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not.