Tall trees cast long shadows. Just as the terrorist attacks on September 11, 2001, permanently changed the American way of life, so too will COVID-19 change our way of life—and our political and legal institutions. But one thing the virus should not change is the U.S. Supreme Court’s use of oral argument to decide cases.
The court announced recently it would postpone oral argument in a number of upcoming cases. Some of these cases are highly consequential, tackling such issues such President Trump’s tax returns, religious liberties in employment, and immigration. For the moment, the court left undecided how it may eventually move forward with these postponed cases and, currently, the justices are deciding how to proceed.
In a recent commentary, Tom Goldstein, a distinguished Supreme Court practitioner and founder of the award-winning SCOTUSblog, proposed that the court forgo oral arguments in at least some of these cases. He suggested the court decide them based solely on the submitted written briefs. Goldstein contends that oral argument contributes comparatively little to the court’s decision-making process relative, at least, to the briefs. Therefore, it would be innocuous for the justices to decide them without such a hearing.
We strongly but respectfully disagree with this proposed solution.
Scholarly research over the past quarter century demonstrates that oral argument serves critical roles. First and foremost, what transpires during oral argument can actually determine who wins and who loses a case. The data reveal that an attorney who provides a higher quality argument relative to her opponent is significantly more likely to win an individual justice’s vote. And this relationship holds even after accounting for things like the level of ideological agreement between an attorney’s position and a justice. In other words, oral argument actually results in persuasion whereby some justices change their minds. Eliminating oral argument, then, has the potential to change case outcomes.
Additionally, oral argument plays a critical informational role for the justices. Whereas attorneys drive the content of written briefs, justices largely control oral argument. Indeed, these proceedings provide justices the unique opportunity to solicit information they think is important. And that is precisely how they use it. Our co-author Timothy R Johnson analyzed a sample of cases and found that more than 75 percent of the court’s oral argument questions raised issues the briefs had not addressed.
What is more, the justices actually use this novel information to write their opinions. The court’s opinions contain a significant amount of issues raised only at oral argument. For example, 30 percent of the issues raised uniquely at oral argument make it into the Court’s final opinions. Well more than 50 percent of the court’s unique references to the preferences of actors like Congress and the president, as well as to the court’s own institutional norms and rules, come exclusively from oral argument.
In short, justices obtain new information at oral argument and use it in their opinions. And, when justices decide cases without the benefit of oral argument, they rob themselves of the opportunity to obtain the unique information oral argument generates.
Oral argument also legitimizes the otherwise private court, allowing the public a glimpse into the country’s most powerful judicial body. The only time the public actually observes the justices conduct their work is when they sit on the bench. During this time, the public observes crucial legal symbols—black judicial robes, law books, a temple with high back chairs elevated on a pedestal—that tend to enhance the court’s legitimacy and bestow a halo of positivity upon it. Remove oral argument and you remove some of the very foundations that support the court’s long-term legitimacy.
To be sure, the proposal to remove oral argument appears to be a short-term solution for an immediate problem. We are sympathetic to the need to adapt to these turbulent times. Nevertheless, to paraphrase Milton Friedman, nothing lasts longer in Washington, D.C. than a temporary program. And once we allow cracks to develop in our institutions it will not take long until they expand and threaten the very foundations of those institutions. The unintended consequences of removing oral argument, even if temporary, could be dire.
The court should protect its centuries-long tradition of oral argument. These proceedings offer parties and attorneys an opportunity to be heard in a way that matters. Oral argument allows justices to obtain information they otherwise would not obtain. And it enhances the court’s legitimacy. Respectfully, we believe the court, when able, should set its postponed cases for argument and not decide them on the briefs alone.
Ryan C. Black is a professor of political science at Michigan State University. Timothy R. Johnson is the Morse Alumni distinguished professor of political science and law at the University of Minnesota. Ryan J. Owens is the George C. and Carmella P. Edwards professor of American politics at the University of Wisconsin-Madison, and the director of the Tommy G. Thompson Center on Public Leadership.
Photograph of the Supreme Court building by Jonathan Newton/Washington Post/Getty Images.
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