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Oral arguments give public a peek at Supreme Court’s work

Written by William C. Duncan

June 2, 2022

The attention given to the leak of a draft Supreme Court opinion – because it is so unprecedented – highlights how much of the court’s work is done away from the view of the public. The major exceptions are the published decisions of the court and its oral arguments.

While thousands of parties ask the court to take their case every year, the court only accepts about 80 cases for review. When the court accepts a case, it sets a schedule for the parties to submit written submissions, called “briefs,” in which the parties lay out their detailed legal arguments. These briefs, which are very formal, include extensive citations to previous cases and other legal sources.

After all the written submissions have been made, the court gives the parties an opportunity to present an oral argument to the court. The court’s website explains: “An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices.” In the argument each side gets 30 minutes to present its arguments, but much of this time will be spent responding to questions from the justice.

The Supreme Court’s guide for attorneys encourages them to be ready to “cut to the chase” in their argument, since they might have little time to present what they have prepared. Prior to the pandemic, the format used by the court in questioning the attorneys was a “free-for-all.” The shift to remote arguments during the pandemic required a shift that required justices to take turns with questions. Returning to live arguments, the court has retained some of the turn-taking approach.

Attorneys are typically given a couple of minutes to present their argument without interruption, and then justices are each given an opportunity to ask questions “in order of seniority, beginning with the Chief Justice.”

By the time the arguments are presented, the justices have had the opportunity to read the briefs and conduct research on the legal issues. Thus, when the oral arguments are held, the justices have likely started to form opinions about the case, and the arguments provide them an opportunity to raise informed questions with the attorneys.

The motives behind the questions are, of course, unknown, but there are some possible purposes for the questions posed.

First, the justices may want to seek clarification of an argument raised in the written briefs or ask about a legal argument that the justice feels is important but not adequately addressed in the briefs.

Second, the justices may want to raise a possible resolution of the case with the attorneys to see how they will respond.

Third, the justices may want to ask the attorneys to make concessions on a point that will make the resolution of the case easier. If the attorney agrees to something the justices suggest, that concession can be relied on in the court’s decision.

Fourth, the justices may raise hypothetical questions to see how a particular legal ruling might affect other cases. These types of questions may allow the justices to ask about the public policy implications of a particular ruling.

It seems likely that the written submissions and the justices’ own research are more important than the oral argument in determining the resolution of a case. The arguments can be an important supplement to those submissions. Since the arguments are made available, in transcripts and recordings, to the public, they also provide an opportunity for citizens to gain some familiarity with the issues in a case and to better understand the legal questions the court will be answering in its decision.

In short, oral arguments are the primary opportunity for the public to gain insight into the considerations and thinking of the justices before a final decision is released. The leak of the draft abortion opinion offers a unique exception to this rule. Given its implications for the legitimacy of the court and for America’s democratic republic, we hope this exception will not become the norm.

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