Hot Bench: A Theory of Appellate Adjudication

48 Pages Posted: 23 Apr 2019 Last revised: 6 Sep 2019

See all articles by Terry Skolnik

Terry Skolnik

University of Ottawa, Faculty of Law, Civil Law Section

Date Written: March 24, 2019

Abstract

The Supreme Court Justices are talking. And they are talking more than ever during oral argument. Beginning roughly two decades ago, the dynamics of Supreme Court hearings changed significantly as the Justices evolved into an increasingly hot bench. The term “hot bench” implies that appellate judges engage in vibrant verbal exchanges with the parties during oral hearings. Its rise to prominence has led to a series of changes that scholars refer to as the “new oral argument”. As part of the new oral argument, Supreme Court Justices now speak more while the parties speak less, they interrupt both their colleagues and the parties (especially women) more frequently than in the past, and some of their questions advocate for positions rather than seek information. A hot bench raises crucial concerns about the nature of oral argument and appellate judges’ role in a constitutional democracy.

This article addresses those concerns and advances a theory about the connection between a hot bench and appellate adjudication. It provides a new account of how active hearings can promote certain functionalist and democratic virtues of oral argument that cold benches and written decisions cannot. A hot bench may afford improved transparency into decision-making, increase judicial accountability, display greater concern for minority interests, and encourage constitutional dialogue between the different branches of government. Active oral arguments also help appellate judges optimize their limited information gathering capacity, prevent errors, and form coalitions around their shared commitment to judicial minimalism. Appealing to asymmetric information theory in economics, this article demonstrates how judges form majorities through signaling and screening.

A more well-rounded account of a hot bench’s value, however, requires an examination of its vices as well as its virtues. Active hearings can (and do) undermine some of the justifications for oral argument and place certain democratic values at risk, including political equality, fairness, participation, and respect for public institutions. Thus, a hot bench can result in a paradox: active judges sacrifice some democratic and functionalist values of oral argument in the pursuit of others. This article concludes by demonstrating why appeal judges must avoid particularly costly trade-offs and how they can do so.

Keywords: hot bench, adjudication, appellate courts, judicial minimalism

JEL Classification: K00, K10, K19, K30, K39, K40, K4

Suggested Citation

Skolnik, Terry, Hot Bench: A Theory of Appellate Adjudication (March 24, 2019). Boston College Law Review, Vol. 61, No. 4, 2020, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3359175

Terry Skolnik (Contact Author)

University of Ottawa, Faculty of Law, Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

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