Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, June 21, 2018

When Justices Cite to Oral Arguments

As the Supreme Court's term finishes with a flurry, this is a great time to glue yourself to Adam Feldman's data dives on his outstanding blog, Empirical SCOTUS (cross-posted since March at SCOTUSblog.com). The site is a treasure trove for Court watchers, and Feldman is terrific at collecting, presenting, and analyzing data about an endlessly fascinating institution.

In a recent post, Don't Cite Me Like That, Feldman touches (tentatively, and appropriately so) on issues that keep a lot of us entertained: Does oral argument change outcomes? If so, how? And how can we tell? This debate was raised afresh late last week in the wake of the Court's decision in Minnesota Voters Alliance v. Mansky, a challenge under the First Amendment to Minnesota's ban on political apparel at polling places. Because polling places are nonpublic fora, governments have considerable latitude to impose even content-based restrictions on speech; those restrictions simply must reasonable and viewpoint-neutral. Writing for a seven-justice majority, Chief Justice Roberts concluded that the ban was unreasonable because the state failed to draw sufficiently sharp lines between permitted and banned political messaging; that is, the Chief says, "a serious matter when the whole point of the exercise is to prohibit the expression of political views."

To illustrate the state's difficulty in drawing lines, the Chief Justice cites to segments of the argument where counsel for the state, like, struggled to draw lines. The key questions came from Justice Alito; Mark Joseph Stern describes the most damning colloquy and provides an audio cut in this piece for Slate. Justice Alito relentlessly presents a chain of hypothetical questions about how a reasonable polling official would apply various bits of expressive apparel: a Colin Kaepernick jersey, shirts displaying rainbow flags or various messages, and so on. Counsel for the state's struggle was real (and understandable). It was also, according to the chief, telling:

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My intuition is that justices will most often cite to oral argument for the reasons the Chief did here: to oppose the position of the advocate presenting the argument. My sense, too, is that a major subset of such uses would be to expose overbreadth and faulty tailoring by highlighting awkward responses to scope-testing hypotheticals. Characteristically, Feldman doesn't rely on intuition: he pulls the data. This term, justices have cited to oral arguments 69 distinct times in 26 cases (both numbers went up this morning; the justices dropped cites to oral argument in this morning's opinions in Pereira v. Sessions and Lucia v. SEC). And yes: this term, justices' most common purpose for citing oral argument has been to undercut a party's position, either by using the transcript to "create a straw man argument that the authoring justice later deconstructs" or, as in Mansky, to "more directly oppose a party's position" by detailing "miscalculated or erroneous answers," often to questions about hypothetical applications. To be sure, justices use oral argument transcripts for other purposes, and Feldman breaks down and explains those well. This strikes me as a rich area for further study.

Cycling back to the initial question: did the state's struggles in the Mansky oral argument effect the outcome? Obviously, we can't know with the information we have, and given the marginal, late-in-the-game impact of oral argument, a good hypothesis in almost any case would be no. But, as Feldman cautiously explains, Mansky might be different. Justices Kennedy, Ginsburg, and Kagan sided with the majority. But their questioning patterns at oral argument (and, to some degree, the substance of their questions, particularly those of Justices Kennedy and Ginsburg) would suggest that they might have been inclined to rule the other way. And Justice Sotomayor's position in dissent—certify the case to the Minnesota Supreme Court for a possible saving construction—was a modest one. And yet: 7-2, with the oral argument transcript cited six times in the majority opinion (the Court also cited twice to oral arguments in Burson v. Freeman, a 1992 case addressing campaigning restrictions near polling places; see footnote 1 of the Mansky slip opinion).

So perhaps oral argument really mattered here. 

Mostly, though, just add Empirical SCOTUS to your must-read list if you haven't already. 

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