The Supreme Court Has an Oral Argument Problem
Livestreamed oral arguments in big cases have become about scoring points with the Justices' respective crowds, not obtaining information from the lawyers
Decades ago, the incoming Chief Justice, William Rehnquist, told LA Times Supreme Court reporter David Savage that oral argument in the Supreme Court was for the most part a meaningless ceremony. He said it affected the result in less than 5% of cases. Rehnquist’s point was that many legal teams invest a great deal of their clients’ money into hiring expensive “repeat player” oral advocates with 20 SCOTUS arguments under their belts to deliver blockbuster presentations to the Court, but the money is far better spent on great briefing, because that’s where cases are decided. The oral argument is more about glamour and glory.
I’ve thought about Rehnquist’s comment a lot lately. Because while it was kind of silly that people were spending a lot of money on something that didn’t matter very much, at least they were buying protection against their case falling into that 5% where the oral argument did matter, and it was worth something to have an experienced advocate who could answer the Justices’ questions about the aspects of the case they were struggling with, whether it to be important facts that a Justice may have missed in the record or how to rule for her client without announcing a rule that will mess up the results in other cases.
But in the last couple of years, as oral arguments have started to be livestreamed and the major, politically salient cases attract huge audiences of political junkies, something has definitely changed. This week’s argument in 303 Creative v. Elenis, which involves a conservative Christian website developer who claims she wants to open a wedding website business and asserts a free speech right to refuse to serve gay couples in the operation of her hypothetical business, really made clear how things have changed.
In the 303 Creative argument, the justices asked a series of hypothetical questions to each of the advocates. In principle, that’s not a big problem- concerns that a ruling for you in this case might cause a bad result in a future case applying the same rule are a legitimate and important part of appellate argument. But it was the kind of hypotheticals that were at issue.
Here’s what I mean. I’ll start with how hypotheticals might be used legitimately. Let’s say you are urging an appellate court to adopt a rule that allows abortion on demand for any reason up until birth, and would strike down any abortion law that burdens that right. Skeptical judges might ask you hypotheticals- what about laws that impose health and recordkeeping regulations on hospitals and clinics but which may result in some clinics closing because they can’t afford to comply, thereby burdening the women who would go to them? Or what about laws which are occasionally passed to ban abortions to select the sex of the baby?
These hypotheticals test whether the advocate’s proposed legal rule goes too far. Whether it is too broad. Whether it will strike down the sort of law that someone may in the future want to pass, or which is in place now in some other jurisdiction.
In the 303 Creative case, there were a handful of these hypotheticals. For instance, Justice Kavanaugh asked about other vendors who serve weddings, such as florists, caterers, jewelers, and others. Can the guy who supplies the food say “my food is an expression of my support for the wedding, so requiring me to cook it for a gay wedding is a compelled endorsement of gay marriage”? That’s a reasonable question- it’s completely foreseeable that if 303 Creative wins its case, there will be claims from florists, caterers, and jewelers. Already, an earlier case involved a baker who bakes wedding cakes!
But that was maybe 10% of the hypotheticals asked. The rest of them? Well, they were so ridiculous that even Advisory Opinions podcast hosts David French and Sarah Isgur, who are right wingers with very different beliefs about the proper outcome of this case than I have, said they seemed to have no purpose other than to embarrass the lawyers.
Examples included :
What if someone opened a photography business in a mall that offered “Scenes With Santa”, sepia toned photos of period-accurate scenes of children from the 1940’s with Santa. And because such Norman Rockwell imagery featured white kids, only white kids and their parents could purchase the “Scenes With Santa”.
What if in the same mall there was a Black Santa who refused to serve white kids who showed up in KKK robes seeking to purchase photographs?
What if a baker opened Grandma Helen’s Protestant Provisions, which asserted that food is good for the soul and a gift of God so Grandma Helen only wanted to serve her soul nourishing food to Protestants?
What if a photographer asks what you are using a photo for and will not take the photo if you are using it for the ashleymadison.com extramarital affair dating website?
What do all of these hypotheticals have in common? That’s right folks, these are things that will never happen in the real world. They aren’t concerns about whether the Court’s ruling will have real world implications in future cases, like Justice Kavanaugh’s question about caterers. They are made up, contrived factual situations that will never happen, that a court would never worry about happening, but which force the lawyers to say things like “yes, the hypothetical racist should be protected”.
Just as importantly, these hypotheticals are being asked by Justices who have clearly already made up their mind as to how they are going to vote in the case. Justices Alito and Jackson were asking many of the hypotheticals. Nobody thinks either of their votes are in play in this case. They weren’t seeking any information from the advocates. So why are they asking all these questions?
To be clear, one shouldn’t be dogmatic about Justices whose mind is made up asking questions. There can be situations where Justices use questioning to persuade others on the Court. But a Justice wishing to convince another Justice who is on the fence would not ask wild hypotheticals, but questions based on foreseeable, real world situations. “This case could lead to a bad result in a weird hypothetical situation that will never actually happen” is not an argument that has ever persuaded anyone.
And in general, there aren’t going to be that many of those questions. Which means that the Justices whose minds are already made up should probably be asking very few questions, so that the advocates are given time to persuade swing Justices and the swing Justices themselves can ask questions and explore their concerns. Oral argument time is limited, and the most partisan Justices are taking up precious amounts of it asking questions with no relevance to the outcome of the case. (I should add, this is also bad if you care about the parties being able to present their arguments. Over and over, Justices interrupt advocates and each other. Often the lawyers are only able to get a couple of sentences in at most before another, often partisan, question comes. I listened to another argument this week, the Moore v. Harper elections law case, and tried skipping around the audio file. Almost every random place I selected on the recording, I heard a Justice speaking, not one of the lawyers. This is supposed to be an exercise where the Court obtains information from the lawyers, not a star turn for loquacious Justices.)
Am I sure this is happening, or was it just something about the 303 Creative case? Well, I listened to five SCOTUS oral arguments this week. Two were hot button political cases- 303 Creative and Moore. The other three involved issues of little political salience, such as the exceptions to the dischargeability of debts under the Bankruptcy Code for money or property procured by fraud. And guess what- in those other three cases, there were no wild hypotheticals. The Justices asked good questions. And a lot of them were asked by Justices struggling with the case. For instance, in the Bankruptcy case, Justice Kagan asked what would happen if she defrauded a seller to obtain a home, and then later sold that home to someone else, who took out a loan to purchase it and defaulted on the loan. The home was “property procured by fraud”, but is a mortgage by a good faith purchaser the kind of debt that the Bankruptcy Code fraud exception is intended to cover? And Justice Kagan clearly was struggling with the issues in the case and had not made up her mind.
In other words, in the non-political cases, the Court was acting like a court. In the political cases, it was not. This, of course, tracks other critiques of the Supreme Court, i.e., that it is a lot more results oriented in political cases, where the Justices vote consistent with their political preferences and to help their “side”.
And as you might imagine if you are a longtime reader, I think one reason for all of this is political polarization. The Justices now consume partisan media. While none of them are officially on Twitter, they clearly follow the discourse there (and we have no way to know if some of them or their clerks have anonymous accounts). The Court, like the rest of society, is dividing into partisan bubbles. And it is irresistible to play to your own crowd. Every big politically salient Supreme Court argument is discussed in real time on Twitter, with political hobbyists and partisan hacks cheering on the “zingers” and “killer hypotheticals” being offered by their own “side” and complaining about the “improper” and “unbecoming” and “unfair” tactics of the other “side’s” Justices. (Indeed, even in the 303 Creative argument, much more attention was paid to how Justice Alito supposedly committed some horrible act of rudeness by telling a joke about Justice Kagan’s knowledge of dating sites, than to the problem with the silly hypotheticals. Numerous liberals expressed outrage on Justice Kagan’s behalf. In fact, this is the sort of thing that the Court will handle behind closed doors; if Kagan thinks Alito went too far, she’ll tell him privately, and he’ll apologize for it. She doesn’t need the Twitter mob to get after him.)
But beyond polarization, something else is going on. And it relates to something that I was wrong about when I was younger. I was a huge supporter of cameras in the courtroom. I felt that just like CSPAN educates the public about congressional procedure, live broadcasts of court proceedings would have an enormous civic education function. They would open up the courts to all the public- only a select few can attend arguments in the big cases, and often many seats are swept up by people with connections or resources or press credentials.
Well, I think that in the big, political cases, I was wrong. Before Bush v. Gore, we never got to hear the recordings of Supreme Court arguments until weeks or months after they happened. And a result was that scholars listened to them, but there were no crowds for the Justices to play to, and while there were a few outliers (Justice Scalia asked too many ego-driven questions in cases he had already made up his mind in), for the most part arguments were dominated by those Justices who were really struggling with the case.
The argument against live broadcasts was already out there, of course. The OJ Simpson trial, which I did not watch at the time, was full of lawyers and a trial judge playing to the cameras, which is part of why the case kept a jury sequestered for 10 months (an incredibly inhumane and outrageous act) and certainly led to some of the more inappropriate actions by Simpson’s defense team. For example, defense lawyer Johnnie Cochran spent days cross-examining LAPD officers about completely minor and trivial stuff, and Judge Lance Ito let him do it and never imposed time limitations. This was great for Johnnie Cochran’s image as a lawyer- he was rhetorically beating up on LAPD cops and burnishing his image as a civil rights lawyer. But it was bad for any conception of a fair and efficient trial process- and it kept the jury in prison while all the shenanigans went on. Many commentators, at the time, said televising the OJ trial was a mistake. I disagreed. I thought sunlight was still, on balance, the best disinfectant for court proceedings.
But the Supreme Court moved cautiously. Immense press interest led the Court to release the Bush v. Gore arguments an hour after they were held— news channels immediately broadcast them in their entirety. The Court then started releasing other arguments on the same day as the argument. And when COVID hit, and arguments would have to be made by phone (where it was impossible to police anyone broadcasting the arguments), the Court gave in entirely at least on the audio side (there are still no television broadcasts of oral argument video). And Twitter started coming alive with live tweeting threads of politically salient cases. This is when the Justices really started playing to the crowds and stopped using the arguments in these cases to explore the issues and clarify the things they were having trouble with.
What can be done about this? One thing that could in theory happen is that Chief Justice Roberts could start telling Justices to knock it off. Chiefs have no actual power, but they do have some persuasive authority inside the Court. There are problems, however: for one thing, the Chief Justice already has a much bigger problem that he is dealing with, the leaking of confidential information from the Court. He may be wary about making too many asks of the Justices, especially since presumably the more ideological Justices get enjoyment from having their zingers bounce around Twitter and get likes and retweets from the people on their political side. They won’t really want to be told to stop it.
Another more radical proposal- and one the press would scream about- would be to get rid of streaming oral argument audio, or at least to do it in the big politically salient cases. Even having to wait a week might cool the temperature here; perhaps even more ideal would be to release the audio after the decision is rendered, when few people will go back and listen to it. And I would note, while the press might scream, they would still have oral argument transcripts they could look at. So they could still predict case outcomes, tell the public what was argued, etc. There’s no First Amendment right to the higher ratings and click rates attained from audio, any more than the Court’s current “no video” policy violates any law or constitutional principle.
Again, though, I suspect something like that would also engender significant pushback from the Justices. After all, the more ideological ones obviously like the current situation. They enjoy using oral argument to score partisan points and roast the other side. The same factors that give partisans an endorphin rush when they trash their opponents online, apply to the Justices as well. But the Court has clearly lost the thread here, and needs to do something if oral argument is going to have any use at all in the big cases.