Citation: Tonja Jacobi & Matthew Sag, The New Oral Argument: Justices as Advocates, 94 Notre Dame Law Review 1161 (2019)
In a nutshell:
In The New Oral Argument: Justices as Advocates, Tonja Jacobi and Matthew Sag argue that Supreme Court justices now behave as advocates rather than inquisitors at oral argument, and that this change began abruptly in 1995 in response to the sharp rise in political polarization in Congress and among the public.
Summary
The New Oral Argument is built on a dataset of the text of every Supreme Court oral argument from the 1960 Term to the 2015 Term: over 1.4 million speech episodes in more than 6000 cases, supplemented with biographical information about the justices and advocates and with case outcome votes. We measure judicial activity five ways: words spoken by the justices, duration of judicial speech, questions asked, “non-questions” posed, and interruptions. On every measure except questions, judicial activity increased dramatically over the period, and the justices now take up twenty-two percent more of the argument than in the earlier era, at the expense of the advocates’ time.
The article then shows that this activity is fairly characterized as advocacy. The number of questions has stayed flat; the growth comes from comments, conclusions, and rebuttals aimed at the advocates and at the other justices. The behavior is also one-sided. The justices direct challenging comments at the side they ultimately vote against and use leading questions to assist the side they support, sometimes stepping in to deflect a difficult line of interrogation aimed at an advocate they agree with. The article illustrates these patterns with transcript excerpts from recent arguments, including Masterpiece Cakeshop, Carpenter v. United States, and Epic Systems v. Lewis, before confirming them with multivariate regression analysis.
Finally, we use structural break analysis to show that 1995 marks a discontinuity in judicial behavior rather than a point on a gradual trend. That date corresponds to the surge in political polarization that followed the Republican Revolution in Congress, and the data provide no support for competing explanations such as Justice Scalia’s arrival in 1986 or the professionalization of the Supreme Court bar. The conclusion is that partisan polarization shapes the justices’ conduct of the one public part of the Court’s decision-making process, as well as their votes.
Why read this article?
The New Oral Argument provides the most comprehensive empirical account of Supreme Court oral argument to date, and its appendix includes a table comparing the scope of every major prior empirical study of oral argument, which is a useful entry point into that literature. The article also provides an accessible primer on the political science of polarization, summarizing the Poole and Rosenthal congressional data, the Pew surveys of public opinion, and the emerging work on polarization at the Court itself. Readers who prefer to see the evidence before the statistics will appreciate that every key result is first presented graphically, so the 1995 break can be confirmed by eye. The transcript excerpts of justices making arguments, rescuing advocates, and correcting each other are entertaining in their own right.
Further Reading
Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia Law Review 1379 (2017) – Documents how interruptions at oral argument track gender, ideology, and seniority: female Justices are interrupted at disproportionate rates by their male colleagues and by male advocates.
Tonja Jacobi, Zoe Robinson & Patrick Leslie, Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia, 71 American Journal of Comparative Law 568 (2023) – The companion inquiry for Australia’s apex court: nearly a million speech episodes from 26 years of High Court oral argument, testing whether the strategic and ideological patterns documented at the U.S. Supreme Court appear under a different institutional design.
Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12, 2015 Utah Law Review 1005 – This two-period comparison of oral arguments documented how much more the modern justices speak and interrupt, and prompted the longitudinal analysis that The New Oral Argument provides.
Neal Devins & Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301 – Devins and Baum show that for the first time in the Court’s history, ideological blocs on the Court coincide exactly with the party of the appointing president, and trace this to polarization among political elites.
Timothy R. Johnson, Paul J. Wahlbeck & James F. Spriggs II, The Influence of Oral Arguments on the U.S. Supreme Court, 100 American Political Science Review 99 (2006) – Using Justice Blackmun’s private grades of the lawyers who appeared before the Court, this study shows that the quality of oral advocacy affects the justices’ votes on the merits.