Do Oral Arguments Affect Supreme Court Justices? A Reprise.

by John Sides on March 27, 2012 · 6 comments

in Judicial

Ezra Klein:

Either way, it seems unlikely today’s oral arguments will dislodge the justice’s conclusions. Indeed, it would seem faintly ridiculous, and possibly even irresponsible, for the justices to permit one lawyer having a particularly bad or good day before the bench to flip such a consequential case. But what do the experts think?

Here is what at least some experts think:

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.  (See also Johnson’s book).  They examine a random sample of the Court’s cases from 1970-94 (539 in all).

I linked to this article in a 2009 post, and I’ll repeat what I said then:

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.

That said, this research deserves a place in the conversation.

{ 6 comments }

Boz Oliver March 27, 2012 at 1:54 pm

While I don’t think oral arguments can never be swaying, the judges have likely already read the arguments prior to the oral portion. They know the arguments, and they’re likely just pressing them to see if there’s more.

RobC March 27, 2012 at 1:59 pm

A complicating factor is the quality of the briefs. My hypothesis is that the quality of the briefs has a greater effect on the outcome than the quality of the oral argument. But whether or not that is true, there is likely a considerable correlation between the quality of an advocate’s brief and the quality of his or her oral argument, which are after all just two faces of the more general trait of good advocacy. Accordingly, even if it were shown that on average, better oral arguments are associated with better results, it would still be necessary to isolate to what extent the better results were caused by the oral argument rather than the briefs. Similarly, separating out the effect of the participation of the solicitor general’s office would be important. The quality of their advocacy is generally high, but their success rate could easily have as much to do with the fact that it’s the Government they’re representing than with their talent in presenting their arguments.

Scott Monje March 27, 2012 at 5:39 pm

But I’m not sure that’s a different arugment. I think he means to distinguish the quality of the presentation (which could be oral or written) from the underlying legal merits of the case.

RobC March 27, 2012 at 6:13 pm

Scott, I’ll leave to John Sides to say what he meant, but what he said, in the headline and in the quotes he included, was limited to oral argument. Perhaps more importantly, the 2006 Johnson, Wahlbeck and Spriggs article discusses only oral argument and not the broader question of the presentation in general, and their conclusions are very specific about the effect of oral argument alone:

By providing the first systematic evidence that what transpires at oral arguments affects justices’ final votes on the merits we show that elite decision makers can be influenced by those presenting arguments to them. . . . In sum, we show that the justices find oral arguments to be an important part of the Court’s decision-making process, and that the quality of arguments, as measured by Justice Blackmun, affects the justices’ votes.

In this, I believe they made an unwarranted logical leap.

Matthew Reid Krell March 28, 2012 at 9:15 am

The conventional wisdom among those who do appellate advocacy is that oral argument can almost never win your case – but it can certainly lose it.

charles March 28, 2012 at 9:10 pm

The Supreme Court of Canada considered doing away with oral arguments because they seldom influenced the Justices and a lot of time was spent in court. Most Justices would say that oral arguments influence them, rarely. Others say it never did in their years on the bench because it was all just long winded repetition of the written arguments. In some of our high profile cases, (all are televised) they have immediately given judgement 9-0. However, as a lawyer for 25 years, you sometimes could tell that you were going to win because the judge hated/ liked you. Clients pick up on it all the time. Other lawyers would say “the judge was sure happy to see his friend in court today”or get upset when you walked in and another case was interrupted by the judge to say hello to you. Judges are humans and sometimes are swayed by strange things. At the top court, they are less likely to be swayed as the stakes are so high.They are more conscious of not wanting to be influenced by the personal things. Oral arguments are likely to not matter as much. Each side has already got the inside arguments ready to go to in the internal court of 2; Kennedy/The Chief.

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