Supreme Court Oral Advocacy: Does it Affect the Justices' Decisions?
61 Pages Posted: 20 Apr 2007
Throughout the twentieth century, Supreme Court justices have expressed the belief that when the sit for oral arguments to discuss cases with counsel and among themselves, these proceedings sometimes play a critical role in how they decide. The key questions, however, are what, if any, information do the justices actually garner from these proceedings; and what consequences, if any, does such information have for the outcomes of cases? There are two main pieces of information they can gather from the oral arguments: information they draw out of counsel about the Court's legal and policy options, and information about how their colleagues view the case. We consider these two types of information in turn. First, and most basically, justices posit that, during oral arguments, counsel provide information that helps them decide on the merits of cases they hear. Second, justices posit that oral arguments can clarify their own thinking and "perhaps that of their colleagues." In other words, during these proceedings, they contemplate how the arguments relate to their own, as well as to their brethrens', vote to reverse or affirm the lower court decision. They do so by speaking with one another as much as they speak with counsel. In this paper we are interested in testing empirically the extent to which justices utilize these two sources of information that can be drawn from the oral arguments, as well as the extent to which such information affects the decisions they make. In so doing, we draw on a unique set of data: notes taken by former Supreme Court Justices Harry Blackmun and Lewis F. Powell as they sat on the bench during oral arguments.
Keywords: Supreme Court, oral argument, Harry A. Blackmun
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