Colorblind and Color Mute: Words Unspoken in U.S. Supreme Court Oral Arguments

Abstract

The U.S. Supreme Court holds oral arguments on 70 to 80 cases each year, with fewer than a dozen most years involving issues around race or ethnicity. When the salience of race is clear, Supreme Court observers would expect to hear racial terms used in the arguments by counsel, as well as in the Justice’s questions. Surprisingly, this research study demonstrates that is not the case. These racial terms - such as color, discriminate, minority, race, and its various related terms like racial, racially, racist, as well as combinations like race-neutral, and race-blind – only sparsely appear in oral argument transcripts of cases implicating racial issues. In one case involving racial discrimination against a black postal worker, the term “black” was used only three times in the court opinion and not at all in the oral argument.The research methodology began with creating a list of U.S. Supreme Court cases in which issues of race, ethnicity, tribal, or national origin discrimination were raised in petitions heard in 2018–22. The specific manifestations ranged from gerrymandering and redistricting, peremptory strikes, employment discrimination, disparaging trademarks, travel bans and Deferred Action for Childhood Arrivals, as well as affirmative action.The initial research led to three main findings: (1) how infrequently these terms were used during the course of oral arguments in these race-specific cases; (2) that when these words were used, it was usually by the attorneys arguing the cases, not the justices; and (3) some justices almost never mention these terms. The next step involved analyzing how often these terms appeared in the eventual court decisions, which also led to some surprising results. An analysis of the 2022–23 term’s oral arguments and Court opinions yielded results more consistent with expectations about the frequency of RETNO terms used in cases involving RETNO issues, perhaps attributable to the investiture of a third justice of color on the Court, which could constitute a critical mass. The final section also provides a roadmap for forthcoming additional research based on these preliminary findings.

Keywords: U.S. Supreme Court, Oral arguments, race, ethnicity, Racial terms, Discrimination, Court opinions, Justices' questions