We Still Need Oral Arguments at Supreme Court

Not right now, of course! But postponing cases is a better solution than proceeding based on written briefs.

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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.

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  1. David Graf

    Let the court join modern times in having oral arguments made via video conferencing.

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    Visibly

    I have to be honest: I long for the future where sentencing is based solely on evidence by AI. And not on how a jury feels about the dendent or the accused. The US system is terrible.

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      Visibly

      Defendent. Sorry about several mistakes. I am dyslexic.

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    Bill Nelson

    The topic I would most like to see addressed is which justice writes the best and most influential opinions. Former Justice Scalia was a master, both legally and with wit (and sometimes humor). Even his dissents were often used in latter court cases.

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    A Citizen

    I agree completely with the correlation point made above, but I don't understand either why oral argument, if it's so important, couldn't be done over Zoom. But even simpler: why not simply have the Justices issue interrogatories to the two sides? These interrogatories could have a response time of, say, an hour. Surely, off the cuff spontaneous responses shouldn't be more influential than responses that take an hour to craft. If so, there are bigger problems than the format of oral argument.

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    Bill Dyer (aka Beldar)

    Re this: "For example, 30 percent of the issues raised uniquely at oral argument make it into the Court’s final opinions."

    Again, this is a bug, not a feature: What this datum tends to show is that justices enjoy the gamesmanship of blindsiding lawyers on issues they've neither briefed nor, likely, thought about. The better procedure by far, when an appellate court spots an issue that must be addressed (i.e., hasn't been waived by one side or the other's failure to timely raise it, e.g., subject-matter jurisdiction in federal courts), but that hasn't been, it should ask the parties for supplemental briefing — if we're interested in getting the best, most just results, instead of playing "gotcha" in open court.

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    Bill Dyer (aka Beldar)

    Re this: "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."

    Whatcha bet that the data reveal that those very same attorneys also tend to write better, more persuasive briefs?

    Correlation is not causation.

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    Bill Dyer (aka Beldar)

    It is the rare case in which oral argument is outcome determinative. On those few, it's usually one side which 𝘭𝘰𝘴𝘦𝘴 𝘵𝘩𝘦 𝘤𝘢𝘴𝘦 rather than the other winning it — typically through an unintended admission in response to an unpredicted question from the bench.

    The main function of oral argument at the SCOTUS level has nothing directly to do with the cases being argued; it is, rather, is to promote public confidence in the judiciary, lest the nation's top court function invisibly.

    It has the secondary function of giving constant ammunition to fundraisers from both parties whose emphatic, urgent, woe-predicting emails promise that Important Right ____ is about to be destroyed by those wicked judges appointed by that president you hated. This is a bug, not a feature.

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    Bill Nelson

    I find the court a fascinating topic and reading the summaries of these sessions is enjoyable. Video would lose a lot of content.

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      Aylene Wright

      Also, CSPAN at times will play audio of oral arguments of important cases, and I have listened on occasion. So apparently audio recording is allowed, though video recording isn't.

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        Jeff Walden

        The Court now releases audio of every oral argument the Friday of the week the argument happens. Written transcripts are released later in the day, same day. (In the distant past neither audio nor transcript were released til well after the end of the term -- a truth that is almost unbelievable to some of us newer Court-watchers...)

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