The Questioning of Lawyers at Oral Argument
Chief Justice John Roberts and others have noticed that the lawyer at an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose.1
There are two competing explanations for this phenomenon The first is legalistic. Suppose a judge asks a question of one of the lawyers and gets an unsatisfactory answer. So he asks a follow-up question, and suppose he again gets an unsatisfactory answer. The longer the string of such answers, the likelier the judge will be to believe that the lawyer has a weak case, and so the likelier the judge will be to rule against the lawyer's client. Moreover, a judge who coming into the argument is (as is quite likely) leaning against one party on the basis of a reading of the briefs and his other preargument study may direct most of his questions to the lawyer for that party in order to test whether the party's case is indeed as weak as the judge's preparatory study had indicated.2
The competing explanation, the realist one, is that strategic reasons, rooted in the limitations of formal judicial deliberation, cause judges to concentrate their questioning on the party whom they want to lose the appeal. Although appellate judges like to say they de.liberate carefully before deciding a case, deliberation in most appellate courts is limited in duration, artificial in structure, stilted in content,3
and, in general, overrated as an effective means of exchanging ideas, sharpening arguments, and forging consensus. Judicial deliberation usually is limited to a brief conference shortly after the court has heard oral argument in several cases; it is rare for judges to discuss a case with each other before their post-argument conference. At the conference judges speak their piece, usually culminating quickly in a statement of the vote they're casting. They speak either in order of seniority, as in the Supreme Court, or in reverse order of seniority, as in many of the federal courts of appeals. Often there is no discussion at all but merely statements of the judges' votes. It is a serious breach of etiquette to interrupt a judge when he has the floor at the post-argument conference, and this too discourages free give-and-take.
The elaborate structuring of the deliberative process reflects the potential awkwardness of a discussion among persons who may not be comfortable arguing with each other. (It is also designed to economize on time.) Judges do not select their colleagues or successors, though Supreme Court Justices have occasionally weighed in on the choice of future colleagues.4 Nor are all the judges of a court selected for the same reasons or on the basis of the same criteria. In short, the judges of a federal appellate court, including the Supreme Court, are not picked to form an effective committee. Even when they've been appointed by the same President, their appointment will have been influenced by considerations unrelated to the likelihood that the appointees would form with the other judges a coherent deliberating body—considerations such as friendship with a Senator, past political services, an appealing life story, a desired ideological profile, or personal-identity characteristics such as race, sex, and ethnicity that may give rise to sensitivities that inhibit discussion at conference of legal issues involving race, sex, religion, criminal rights, immigrants' rights, and other areas that arouse strong emotions. The situation both of courts of appeals judges and of Supreme Court Justices resembles that of married couples in a society of arranged marriage and no divorce.
Judicial deliberation can nevertheless be productive when the issues discussed are technical in character rather than entangled with moral or political questions the frank discussion of which is likely to produce animosity. But many cases that reach the appellate level are indeterminate to legalist analysis; and when the outcome of a case cannot be determined by an objective method of inquiry, often because the judges do not share common premises, de.liberation may have little influence on the judges' votes. As Aristotle put it, "We deliberate not about ends, but about means."5
Then too, a strong norm of equality within a court, and the limited power that even a chief judge has over his colleagues, promote a norm of collegiality, one aspect of which is treating colleagues with kid gloves and so avoiding sharp debate, especially on sensitive issues. A notable exception was Justice Frankfurter's efforts to dazzle his colleagues with his intelligence and erudition, which indeed exceeded theirs—but the result was to reduce his influence. Most judges, whatever their actual quality, consider themselves to be deservedly important people and expect to be treated respectfully by their colleagues, as well as by lawyers and sta..
Judicial deliberation, in short, is overrated. English judges until recently (when caseload pressures forced them to change their traditional methods) did not deliberate at all. They were committed to the principle of "orality"—that everything a judge does must be done in public, to facilitate public monitoring of judicial behavior. They actually were forbidden to deliberate; instead, at the end of the lawyers' appellate arguments each judge would state his view of the case. Yet the English judiciary was highly regarded. As we noted in chapter 6, panels of the highly regarded Second Circuit did not routinely deliberate during the era in which Judge Henry Friendly was its dominant figure; instead they exchanged memos after oral argument.
Questioning at oral argument provides a supplement to or even substitute for judicial deliberation.6 The opportunity cost is zero because judges have to attend oral argument. Although the post-argument conference must also be attended, it does not have a fixed length, so judges incur a cost if they spend a lot of time at the conference wrangling with each other. Concern with sharp-edged confrontational debate among judges is alleviated at oral argument because the judges are talking directly to the lawyers and only indirectly to their colleagues. One can imply in one's questioning that a lawyer's argument is ridiculous, but one cannot call the same argument ridiculous when it is made by a colleague at the post-argument conference. So oral argument, which precedes the conference, gives a judge a shot at trying to persuade a colleague nonconfrontationally before the colleague decides how to vote.
Questioning at oral argument also gives a judge an opportunity to signal colleagues who respect his superior expertise regarding a particular type of case. Without that signal the colleague might vote the "wrong" way at conference—before the more knowledgeable judge had a chance to speak, if the colleague spoke before him in the prescribed order of discussion. The vote would be tentative, but once a judge casts even a tentative vote he may fear loss of face if he allows his mind to be changed by another judge at the conference. We know from the discussion of voting "fluidity" in chapter 3 that Supreme Court Justices sometimes change their vote between the post-argument conference and the decision. But that is rare unless the switchers join the majority rather than the dissenters and so can be credited with giving up their personal views in deference to the majority and for the sake of consensus. And there is less loss of face when the switch occurs after the conference rather than in the presence of the other Justices.
The realist theory of questioning at oral argument that we have just been expounding is especially applicable to the Supreme Court. Because of the indeterminacy of so many of its cases to lawyerly arguments, Justices often make up their mind before oral argument, that is, before the lawyers have completed presenting their case. Indeed, since Justices choose which cases they will hear, their minds will often be made up when they decide, long before the argument, whether to vote to hear the case. But as long as not all the Justices have already made up their minds, those who have can use questioning at argument to try to persuade the undecided. This implies asking more questions of the lawyer for the party whom they plan to vote against, in order to punch holes in that lawyer's case and perhaps prevent him from articulating his best arguments (a form of filibustering). Hostile questions to a lawyer resemble cross-examination at trial and are more effective than softball questions pitched to the side the Justice favors, though Justices do ask questions of a party they are leaning in favor of, presumably questions designed to elicit information or argument that will advance the party's cause. And not all questioning at oral argument is tendentious; some questions are neutral quests for information to help an undecided Justice make up his or her mind.
If all the Justices have made up their minds before oral argument, there is no point in asking questions intended to sway their colleagues. But what we are calling making up one's mind before oral argument is more realistically understood as forming a probability, prior to hearing oral argument, that one will vote for a particular side. That is consistent with being persuadable by facts or reasons elicited at oral argument, perhaps in answer to a Justice's questions rather than as part of a lawyer's prepared remarks.
We said that a judge might be recognized by his colleagues as expert in the relevant field of law, so that questioning that conveys his view of the case will influence them before they vote. But this is more likely to be a factor in a court of appeals, with its heavier caseload, larger range of cases, and higher proportion of cases in which the judges do not have an emotional or ideological stake, than in the Supreme Court. In addition, the Court's light caseload, high ratio of law clerks to cases, quasi-specialization (a heavy concentration in constitutional law), and the tendency of prominent people to be self-important can be expected to make a Justice unlikely to defer to any supposed superior expertise possessed by another Justice.
And just as students of free speech distinguish between instrumental and expressive functions of speech, so questioning that signals a judge's view of the merits of the case being argued can provide expressive utility to a judge quite apart from its effect on other judges. This is especially likely in the Supreme Court because the views expressed by Justices in open court are newsworthy. Tendentious questioning enables a Justice to express himself to a potentially large audience, other than just in a judicial opinion, speech, or interview—settings in which judicial ethics forbid a judge to express himself about a pending or impending case. The secular increase in Justices' questioning may be connected to their growing immersion in a celebrity culture. The frequency with which a Justice's questions or comments from the bench invite and elicit laughter in the courtroom7 may be evidence of this.
Although our emphasis is on strategic questioning, there is evidence that some questions that Justices ask are indeed innocently intended to elicit information. A content analysis of oral argument transcripts in 57 cases in the 2005-2008 terms found that information-seeking questioning was inverse to the number of words spoken by Justices at oral argument. Excluding Thomas, who asks virtually no questions, Alito was the least talkative and most inquisitive Justice, and Breyer, Scalia, and Souter the most talkative and least inquisitive.8