Oral Argument in the Early Roberts Court: A Qualitative and Quantitative Analysis of Individual Justice Behavior

Journal of Appellate Practice and Process, Vol. 11, 2010

75 Pages Posted: 13 Sep 2009 Last revised: 22 Jun 2011

James Cleith Phillips

University of California, Berkeley, School of Law, Students

Edward Carter

Brigham Young University

Date Written: June 1, 2011

Abstract

This is the second in a series of articles by the authors examining U.S. Supreme Court oral argument from both qualitative and quantitative perspectives. The first article examined how information seeking and the quantity of verbal activity has changed from the 1960s to the present, and that research sought to determine causes of Justices‘ behavior during oral argument. This article builds on that research by zeroing in on just the Justices of the Roberts Court to determine if their levels of information seeking and word counts are predictive final vote on the merits. Whereas the first article only looked at First Amendment-related cases in order to ensure ideological salience, this study uses random sampling to increase the ability to generalize the results. Content analyzing 57 cases and over 13,000 sentences from 2004-2009, this study found that for three of the Justices the difference of level of information seeking between two sides in a case predicts their eventual vote, and for five of the Justices the disparity between word counts for the petitioner and respondent foreshadow voting on the merits. Additionally, the authors looked at the tone and style of each current Justice on the Roberts Court in order to create a typology describing each, with quotes from oral argument transcripts providing relevant examples. This is the first known study to look at individual Justice behavior during oral argument and seek to predict each Justices‘ voting based on that behavior.

Keywords: oral argument, Supreme Court

Suggested Citation

Phillips, James Cleith and Carter, Edward, Oral Argument in the Early Roberts Court: A Qualitative and Quantitative Analysis of Individual Justice Behavior (June 1, 2011). Journal of Appellate Practice and Process, Vol. 11, 2010. Available at SSRN: https://ssrn.com/abstract=1472489

James Cleith Phillips (Contact Author)

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States

Edward Carter

Brigham Young University ( email )

Provo, UT 84602
United States

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