What is the purpose of the oral arguments at SCOTUS?

What is the purpose of the oral argument part of SCOTUS cases?

The cases heard by SCOTUS are, pretty much by definition, complex. The justices have received lengthy briefs from both petitioner and respondent, and usually also from various *amici * and often the Federal Government as well. Then (I assume) they spend time mulling it over with their clerks who have, no doubt, prepared their own sophisticated and incisive briefs. How much more can be learned in the 30 minutes (max) given to each side’s counsel for oral argument?

Is it, perhaps, mostly a PR thing so that it can be seen and said that ‘one has had one’s day in court’ or do the justices sometimes actually learn something new?

I would expect that a big reason is that the justices may think of implications of the ruling that are not directly addressed in the briefs, and ask questions about those issues.

Not an exact answer, but I have a friend who has argued before SCOTUS and he tells me that you can’t win your case during oral arguments but can lose.

He also said that although justices usually have an idea of how they will decide, it is possible that they will change their minds after oral arguments (of course, how would we know???).

Sometimes the Justices seem to be looking for hints on what other Justices are thinking, and keeping some kind of internal score, to see which side is winning. Presumably the ones doing this will adjust their arguments to try to appeal to the views shown by the Justices that seem to be less decided. Though I don’t know why they couldn’t get better hints from personal conversations with other Justices.

Obviously I have never argued before the US Supreme Court, but I have done a lot of Appellate Advocacy; so I would say that advantages of that are inter alia.

  1. Your job when arguing before the Court is at its heart convincing the bench that the judgement below is a load of tosh; or if the Respondent; it is well reasoned and has no infirmity. Easier to do at oral argument, then in a written brief.

  2. Moving on from the above, the statutes, case law and academic opinion is well known, and you are typically not stating that out loud in detail during proceedings. In oral arguement, you are trying to convince them which view to follow, not what the law is.

  3. It becomes apparent as oral proceedings continue what the judge(s) own views are. You might have submitted 10 grounds on which a reversal should be made, but as you argue, you realise that the bench seems interested in only one; you can then put the main focus on that. The bench might raise points which concern them which are absent or barely touched in your brief, which allows you to at least put your point across (why you don’t think those are relevant for instance), rather then finding your arguments dismissed on that basis.

  4. The fact of oral arguments keeps briefs short and concise, which IMO is worth shedding blood over.

  5. Finally and most importantly (IMO), its tradition.:smiley:

(An article on the importance of Oral Advocacy).

It allows the justices to clarify their thinking about an issue by putting hypotheticals and reductiones ad absurdum to advocates on both sides of an issue. I think laymen and even reporters are way too convinced that the justices go into cases with their minds made up based on what the conservative or liberal conventional wisdom is, on who appointed them, or somesuch. Our whole system of jurisprudence is based on the idea that truth emerges from having the very best advocates passionately argue both sides of something.

Its also probably the only time during the lifetime of the case the te Judges have their entire undivided focus in it.

Thank you for your responses.

That is very interesting and does make sense. On the other hand, what you’re suggesting implies that only one or two justices are focused on only one or two of your points. If the number of justices (or points of focus) is greater, the 30 minute time limit would prevent anything other than a superficial exchange (e.g. five justices focused on an average of two points, allows only three minutes per ‘justice-point’; hardly enough time for deep discussion).

This is sorta what I was getting at when I talked about “PR” in my OP.

I’ll look forward to reading your linked article on the importance of oral advocacy. Thanks.

Here’s an interesting article on it: Oral Argument Before the Supreme Court of Canada.

His point about the conference is an important one: in both the SCOTUS and the SCC, the judges don’t meet to discuss a case before the hearing. The first time all the judges are in one room to discuss the case is the hearing, and the second time is the court conference shortly after the hearing. (In the Supreme Court of Canada, the conference is literally right after the hearing: the conference room is right across the corridor from the courtroom, and the judges go straight across from the courtroom to the conference room, sit down at a nine-sided table, and discuss how they should decide the case.)

The hearing gives the judges the opportunity to ask probing questions about the case. Written arguments are crucial, but the opportunity to grill the lawyers, who have dealt with this case for a couple of years and know it inside-out, provides a valuable opportunity to explore the details and implications.

Now, that view is not universal: Justice Thomas is legendary for never asking a question in hearings, because he does not think the oral submissions are useful.

I find it interesting that Roberts and Binnie, who both were stellar advocates before their respective Supreme Courts, do say that the the oral advocacy is crucial.

Oral submissions enable the lawyer to focus in on the key points of the argument. Re-hashing one’s brief is useless and a waste of time. The judges have already read the briefs.

The point of oral advocacy is to argue your strong points, challenge the other side’s strong points, and defend your own weak points (and every case does have weak points.)

In one of his articles on oral advocacy, Justice Binnie mentions a case where John Robinette, who was possibly the leading SCC advocate of his time, was arguing a case where the weak point in his case was a previous decision of the SCC, entitled Howe Sound Company v. International Union of Mine, Mill and Smelter Workers (Canada) Local 663. It was dead against Robinette’s position, and if the Court followed that decision, Robinette would lose.

So how did Robinette deal with it? By ignoring it or downplaying it?(Both tactics I have seen counsel do in appeals, neither very effective in my opinion.)

No, Robinette dealt with it square on, in the opening words of his argument to the Court:

In one sentence, he summarized his argument, that he was square on challenging an earlier decision of the Court, arguing that it was not properly decided. The rest of the hearing was framed by that one opening sentence.

Robinette won that case. :smiley:

How is that different that how we teach 13 year olds to write essays in Engllish class?
Start each paragraph with a ‘topic sentence’, add a couple more sentences that are support it, etc, and at the end of the essay, re-state your original thesis.
Surely the famous laywer did the same thing when he wrote his brief on HoweSound company?
The opening sentence could have been “I intend to show the court that previous rulings in the Howe case were not correct.”…Followed by 200 pages of dry legal text that proves his claim.

I’m a little sad to learn that the smartest judges in the land make decsions based on clever one-line quips, as if the lawyers are stand-up comics.

That’s a very specialized tactic. If the precedent weighing against me is Rock Solid Granite Co. v. Perfection Tool and Die, I think I’m out of luck. :D:cool:

I’m not a legal expert at all. But I can tell you from experience that a back and forth conversation is important.

I can read a lot about a topic before hand, on both sides of the issue, and yet still come away from a debate on the SDMB with a more nuanced view, or even having changed my mind. I don’t know if the oral nature of the arguments is important, but the arguments themselves are. The act of trying to convince someone else that your position is correct has a way of distilling and forging your ideas into their strongest, most effective form. A long brief just isn’t as effective, however educational and informative.

Just for example, how many of us made up our mind on evolution by reading the Origin of Species? I would bet that almost all of us became convinced of evolution by a few sentences of logic and references to the fossil record. If we then went on to read a large tome on natural selection, it just cemented our conclusions, it wasn’t what convinced us.


Oral debate helps to refine the understanding of an issue, even if ultimately you don’t change your mind as a result.

In my experience (State Supreme Court and Federal Court of Appeals only, no SCOTUS) the Justices/Judges are often looking for concessions that they can weave into their opinions. How you handle those attempts might make a difference.

Overall, I think the lawyers learn more about how the court is thinking than the Court learns from the arguments. I’d vote “tradition” as being the main reason they keep doing it. More in more cases in the 9th circuit are being decided without argument. I wouldn’t be surprised if that’s true in other circuits as well.

Even Federal District Courts are deciding most motions without oral argument now. I had a case in a far away district pending for years and I never set foot in the courthouse.

Lawrence Lessigis convinced that he lost Eldred v. Ashcroft in the oral arguments:

When the chief justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress’s power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit.

O’Connor stopped me within one minute of my opening. The history was bothering her:

Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.

She was quite willing to concede “that this flies directly in the face of what the framers had in mind.” But my response again and again was to emphasize limits on Congress’s power:

Well, if it flies in the face of what the framers had in mind, then the question is, Is there a way of interpreting their words that gives effect to what they had in mind? And the answer is yes.

There were two points in this argument when I should have seen where the court was going. The first was a question by Kennedy, who observed,

Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.

Here follows my clear mistake. Like a professor correcting a student, I answered,

Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

That was a correct answer, but it wasn’t the right answer. The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer’s advice should have mattered. This was a softball; my answer was a swing and a miss.

Oral appellate advocacy is all about telling ‘the story’ of your case concisely and compellingly, and to be able to make your case in spite of difficult questions thrown at it like spanners into your machinery; a dash of humour doesn’t hurt (as long as it is not overdone).

In a perfect world, the skills of opposing lawyers in story-telling ought not to matter … but of course they do.

I wonder what the result would be if all 9 Supremes sat there like a bump on a rock all the time like Thomas does.

This is a difference, then, between US courts and Canadian courts. The appellate courts always hear argument, as do the trial courts.

The only time you’re not required to speak in the appellate courts it means you’ve won: “The Respondent was not called on.”

It would be easier for the advocates, who go in with prepared remarks even though they know they’ll be interrupted. But it wouldn’t be very interesting.

I can’t speak for other jurisdictions, but in Florida oral argument is the exception rather than the norm. From the Florida Rules of Appellate Procedure:

Having said that, oral argument is always permitted if a criminal defendant requests it and the appeal reaches the briefing stage.