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Tuesday, October 05, 2021

The Supreme Court's New Oral Argument Process

One unexpected effect of the pandemic is the significant improvement in the Court's oral arguments. We now regularly hear from Justice Thomas. The Justices don't talk over each as much. It's much easier to follow what is being said. It's great.

The live audio is also a plus. I must say that I'm much more inclined to listen to arguments now rather than just read the transcript. Why? 'Cause it's live! Who knows what might happen? (OK, nothing that dramatic is going to happen, but still . . .)

One revelation, though, is that the quality of many of the oral advocates before the Court is worse than I thought. Transcripts make presentations look much better than they actually are because they remove all of the awkward pauses. I was taught about this as a rookie lawyer learning how to take depositions, but the difference between how the arguments read and how they sound is greater than I expected. (Though not for everyone--Jeff Fischer was outstanding today, though that is no surprise.)

More posts starting tomorrow. The pause that refreshes is over. 

Posted by Gerard Magliocca on October 5, 2021 at 09:16 PM | Permalink


It definitely has some value, no question. Openness and transparency in gov't is usually good and here that's true; in fact it would be nice to have more like streaming video instead of just audio which makes me feel like I time-warped back to the late 90s. (Understanding of course that the law and legal profession are typically backward-looking/technophobic, so it's still cutting edge by that standard.)

Maybe it's just that I get a little exhausted by the goo-goo/No Labels types who harp over things like this as well as "more civics education in the schools!" etc. Again, I'm not saying that stuff is bad. It's nice to have of course, but let's not pretend it's going to have any effect on the most pressing issues of the day.

Posted by: kotodama | Oct 7, 2021 2:56:17 PM

"outsized fascination"

The reply basically notes this is understandable.

You have around an hour and all the parties take part. These days, you can also go online and read through briefs.

But, here you actually hear each side and the justices. So, it has some value. It's fine to note we shouldn't exaggerate that. Same with argument in legislative halls. The "along the margins" stuff can matter, of course.

Posted by: Joe | Oct 7, 2021 2:09:14 PM

I’m pretty up there in terms of being cynical, but not so much that I’d say oral argument is some kind of farce or should be dispensed with altogether. I’ll take the judges, and advocates, at their word that it’s helpful discussion in the sense that it refines and crystallizes the issues and arguments. Certainly, it’s useful for folks in the profession to study either for their own practice or for academic/historical purposes, with Prof. M. currently being an example of the latter (although I understand he was in practice for 2 years early on). And for the general public, it’s obviously a far more accessible window into the Court’s workings compared to the actual opinions. (Even though opinions are of course where the rubber and pavement really get acquainted, they do just seem to get longer and denser these days, especially with many Justices often writing separately; I pine a little for the days when Holmes could get an opinion like MO v. Holland done in 8 crisp paragraphs.)

But I still stand by what I said below. I just don’t think most cases—and certainly not the bigtime, high-stakes ones—would come out much differently if argument just up and vanished one day. Usually, it only seems to make a little difference on the margins. And relative to that, I think there’s an outsized fascination with the argument process. But again, it’s sort of understandable, since it’s as close as it gets to real-time competition in appellate litigation (balls and strikes!).

On the SB8 post, it’s good to know I wasn’t seeing double with that errant paragraph. I don’t fault the judge/clerks with all the effort that must have been required to get a 100+ page sensitive opinion out the door so quickly.

Posted by: kotodama | Oct 7, 2021 1:40:15 PM

The main value of live audio might be the ability to live tweet.

There are some good legal accounts on Twitter for that purpose.

BTW, in reference to a past comment, the SB8 opinion did have an editing fail & a clean copy (h/t Prof. Steve Vladeck ) was soon released.

Posted by: Joe | Oct 7, 2021 11:12:53 AM

I'm not as excited about live audio as some since it doesn't seem to me to add that much. The recent practice was to have the transcript by the afternoon & audio by the end of the week. Video would be a big step for SCOTUS; many lower courts, state courts & foreign courts have it.

Before SCOTUS provided transcripts on their website, Oyez.com audio (often with simultaneous transcript though be wary about the labeling of justices in some older cases) would be the easiest way to check out the oral arguments. To go even further back in time, Peter Irons released some edited versions of arguments on tape in the early 1990s.

Oral arguments are of limited importance though (maybe they are full of it, but that's what they say) judges themselves claim they are useful. For instance, John Harlan II said as much in one thing I saw.

It is particularly useful to academics (Peter Irons notes high school teachers found them useful) with the various sides involved even if one might cynically argue it is mostly for show or something.

As to one bit, I'm not sure about his experience, but some law professors will have more experience actually arguing in front of judges. So, they can have more practical expertise.

Posted by: Joe | Oct 7, 2021 11:08:40 AM

When it comes to intentionally destroying the life of an innocent son or daughter, no Court, Federal or State has Jurisdiction, because when it comes to Due Process, and Habeas Corpus, every human person, because they possess equal human Dignity, is equal before the Law. Every, means all human persons, and not just “naturalized citizens”. A human person, is a human person, regardless of that son or daughters location, including if they are residing inside or outside of their mother’s womb.

To claim that Courts have the jurisdiction to enforce the death penalty on innocent beloved sons and daughters residing in their mother’s womb, is a lie from the start. Such a lie serves in contradiction to our Constitution, because it is a blatant violation of a child’s inherent Unalienable Right to Life, after that child has been created and brought into being, at their conception.

You have been you, since the moment of your conception. You were not someone other than yourself.

Posted by: N.D. | Oct 7, 2021 9:38:26 AM

In his defense somewhat he says he only started listening when it was a live feed. I can understand that too to some extent. I wouldn’t go back and watch video if a sporting event after it already happened; I would just look at the box score etc. That said, I do recognize a lot of people like to watch games after the fact.

Anyway, I am curious as to what pointers he proposes to offer people arguing at SCOTUS. I do know the old saw about not having to be a director to criticize a movie. But I think a law prof criticizing appellate advocates is a somewhat different position.

But in the end, maybe the one area (not a substantive one naturally) I actually agree with Clarence Thomas is that oral argument is fairly overrated. Yes, you can lose a case at argument with an unwise concession. But are there any important cases with a clear partisan/ideological valence where something said at argument was really critical to the outcome? I’m not aware of such cases.

Posted by: kotodama | Oct 6, 2021 11:35:03 PM

"One revelation, though, is that the quality of many of the oral advocates before the Court is worse than I thought."

Oyez.com has had audio for a long time. Not sure why live audio suddenly makes this a reveal.

Posted by: Joe | Oct 6, 2021 11:11:55 AM

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