SJ Quinney College of Law, University of Utah
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Abstract

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for oral argument; the length of the post-argument conference has reportedly shrunk; the exchanges in the Justices’ opinions have become more strident; and the Justices appear to relish a kind of celebrity that even their recent predecessors had shunned.

Notwithstanding these changes, Judge John G. Roberts, Jr., suggested shortly before his appointment as Chief Justice that “one thing that has remained fairly constant [since 1980] has been the level of questioning” at oral argument. That conclusion was based on a comparison of two sets of cases that were argued in 1980 and 2003, respectively. Because the Justices have seemed to other observers to have become more assertive at oral argument in recent years, we decided to inquire further by comparing a set of cases from the recent past (October Terms 2010-12) with a set from a period (October Terms 1958-60) about twenty years before the start date of the Chief Justice’s study. Our empirical study, which provides two snapshots in time, combines quantitative and qualitative methods in an attempt to understand interactions among the Justices and between the Justices and counsel; how those interactions may now be different from those of a half-century ago; and the possible significance of those differences for our understanding of the Court’s role in our constitutional system.

We found significant differences. In the older cases, the nature and shape of oral argument reflected what might be taken to be the traditional purposes of oral argument, but the more recent cases suggest a different dynamic. The Justices rarely allowed counsel to develop a coherent narrative, and they often used an advocate’s limited time to state their own views and to joke or argue with each other. The Justices seemed more personally invested in individual cases at the oral argument stage, perhaps because of larger staffs and smaller caseloads, among other factors, and they often acted as if oral argument were simply an opportunity for them to say what they would like to say about a case. It may be that they do so with a view toward convincing their colleagues, and that what was once a relatively less important aspect of oral argument has become its dominant purpose. It may also be the case, however, that the Justices recognize that their colleagues also may have thoroughly studied the case and made up their minds, so that oral argument seems to be a less important exercise. It may be that the Justices now hear oral argument only because they always have done so, and abandoning it would be difficult politically, but have no theorized, shared view of its current significance. In any event, the “new oral argument” is not about the lawyers, who may often seem to be props, bystanders, or straight-men in the well of the Court. Nor is it about the parties, whose interests are at stake, or about the public. Oral argument seems to be for the Justices, and only for the Justices – time to be used in whatever ways they may find appealing at the moment. Indeed, one might say that it seems to be “all about them.” But what the Court hopes to achieve through oral argument remains unclear.

We suggest that oral argument still has a role to play in the process of Supreme Court adjudication and make some suggestions for how the value of oral argument might be enhanced.

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