Monday, May 25, 2009
I have always taught my appellate advocacy students to welcome the Court's questions, for such questions give them an opportunity to clarify their positions and put the judges' minds at ease. Now comes a study (reported by Adam Liptak in the May 26 edition of The New York Times) indicating that when justices ask questions, it's time to worry.
When she was still a Georgetown law student, Sarah Levien Shullman hypothesized that "the party who gets the most questions is likely to lose." Her study was published in 2004 by the Journal of Appellate Practice and Process. Mr. Liptak reports that Chief Justice Roberts found similar data when he conducted his own private research based on Shullman's work.
The latest study to tackle the question of questions is titled, Inquiring Minds Want to Know: Do Justices Tip Their Hands with Questions at Oral Argument in the U.S. Supreme Court? Authors Timothy R. Johnson, Ryan C. Black, Jerry Goldman, and Sarah Treul tested the same hypothesis, and they came up with the same answer. Their article is scheduled to be published in Volume 29 of the Washington University Journal of Law & Policy. The SSRN abstract is here.
I am still wondering what to make of Justice Clarence Thomas's inquisitorial complacency.