Last week, I posted an extract from an interview with Chief Justice John Roberts on preparation for oral argument found in the 2010 edition of the Scribes Journal of Legal Writing. The volume contains wide ranging interviews conducted by Bryan Garner with all nine members of the U.S. Supreme Court.
In her excellent book, “The Roberts Court: The Struggle for the Constitution” (2013: Simon & Schuster) Marcia Coyle collected extracts from the interviews on the subject of whether oral argument matters. The differing views are set out below.
According to Chief Justice Roberts: “Even when you’re tentatively leaning, you have issues that you want to raise to give the other side a chance to sway you. Some cases, you go in and you don’t have a clue. And you’re really looking forward to the argument because you want a little greater degree of certainty.” Justice John Paul Stevens said: “most of the time, by the time the argument’s over I’m fairly well persuaded one way or the other. But as I said, I’ve changed my mind not only after argument but after conference and after starting to write an opinion. So there’s a lot of flexibility and variation from case to case.”
Justice Scalia said: “To begin with, you should know that oral advocacy is important, that judges don’t often have their minds changed by oral advocacy, but very often have their minds made up. I often go into a case right on the knife’s edge, and persuasive counsel can persuade me that I ought to flip to this side rather than the other side.” Justice Thomas said that his view of a case is “almost never” changed by oral argument, and the view of that of his colleagues is changed “in 5 or 10% of cases, maybe, and I’m being generous there.”
Here is Ms. Coyle’s description of the Court’s internal process leading up to oral argument:
The justices learn for the first time what their colleagues are thinking about a case during oral arguments in that case. No memos are exchanged beforehand: no secret meetings between two or more justices take place. It is a tradition intended to prevent lobbying and secret alliances. They formally announce their positions in a closed-door conference after each week’s arguments. The chief justice speaks first, summarizing the case and stating his view, and then the other justices take turns by seniority -most senior to junior- stating their views. No justices speak twice until each justice has spoken once. Each justice is listening carefully and taking notes on the various views in the event he or she is assigned an opinion. The junior justice tallies the vote. Afterwards, they communicate about the case through memos and draft opinions.