41 Pages Posted: 6 Jun 2009 Last revised: 4 Nov 2009
Date Written: August 2009
Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose the case. This paper provides rigorous statistical tests of that hypothesis and of the related hypothesis that the number of words per question asked, as distinct from just the number of questions asked, also predicts the outcome of the case. We explore the theoretical basis for these hypotheses. Our analysis casts light on competing theories of judicial behavior, which we call the 'legalistic' and the 'realistic.' In the former, the questioning of counsel is a search for truth; in the latter, it is a strategy for influencing colleagues. Our analysis helps to distinguish between these hypotheses by relating questioning practices to the individual Justice’s ideology and to the role of a 'swing' Justice.
Keywords: Supreme Court, judicial behavior
Suggested Citation: Suggested Citation
Epstein, Lee and Landes, William M. and Posner, Richard A., Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument (August 2009). University of Chicago Law & Economics, Olin Working Paper No. 466. Available at SSRN: https://ssrn.com/abstract=1414317 or http://dx.doi.org/10.2139/ssrn.1414317
By Orin Kerr