Supreme Court Oral Arguments Research Articles

Hyping the Hypothetical: Talk and Temporality in US Supreme Court Oral Arguments

The US Supreme Court conducts much of its business through talk, including during oral arguments, where a central activity is the consideration of hypotheticals posed by justices. Using conversation analysis, I examine a key segment of the oral arguments for Citizens United v. FEC, one that arguably changed the course of campaign finance history. I identify the conversational devices employed to advance and contest one particular hypothetical, involving an imagined ban on books, subject to a speech-exchange system that differentially empowers justices to dictate both the terms of the discussion and the time afforded the advocate to respond to any particular question. The article offers the first disciplined qualitative analysis of interaction during oral arguments, illustrates the place of temporality in legal reasoning and argumentation, and makes several contributions to conversation analysis: it advances the study of institutional talk to a new legal setting, identifies some ways in which the machinery of talk can be harnessed for rhetorical effect, and demonstrates the analytical utility of prior knowledge of what a participant arrives to an encounter equipped to say.

Since you put it that way… Gender norms and interruptions at Supreme Court oral arguments

AbstractObjectiveAt U.S. Supreme Court oral arguments, female attorneys are more likely to be interrupted than their male counterparts under some conditions. This makes it difficult for women to effectively construct a narrative and substantively impact case law. While existing work conceptualizes gender as a binary, I draw on recent work stressing gender is performative to deesentialize gender and explore how attorneys’ compliance with gender norms and subtle expectations about men's and women's behavior in a host of contexts, predicts interruptions at oral arguments.MethodsVia quantitative textual analysis of all oral arguments from 2004 to 2019 where one attorney argues for the petitioner and one for the respondent, I examine the extent to which gender norm compliance predicts interruptions.ResultsI find both male and female attorneys are interrupted more frequently when their oral arguments are not gender normative. Thus, an argument that is successful for a male attorney is not necessarily successful for a female attorney, and vice versa.ConclusionMy results underscore female attorneys are not less successful as a matter of course; attorney success is driven by attorney compliance with gender norms. This work also raises a number of normative questions I encourage future scholars to explore.

Linguistic variation in supreme court oral arguments by legal professionals: A novel multi-dimensional analysis

This study uses the method of novel Multi-Dimensional Analysis to compare the discourses of justices, appellant’s attorneys, and respondent’s attorneys to provide a corpus-based description of linguistic co-occurrence patterns in their registers during oral arguments based on the extracted seven functional dimensions: (1) Instructive argumentation versus Informational production; (2) Elaborative exposition; (3) Concern with degree; (4) Concern with projection; (5) Narrative versus Non-narrative expression; (6) Impersonal expression; and (7) Stance-focused expression. Three profession-based legal corpora, totaling 32,107,839 words, were built using case transcripts from oral arguments between 1979 and 2014. The results show that justices are more argumentative, concerned with degrees, projection-, and stance-focused than attorneys. Attorneys are more informative, elaborative, narrative, and impersonal than justices. Among attorneys, appellant’s attorneys are relatively more informative, elaborative and impersonal, and less projection-concerned than respondent’s attorneys. This study has implications for MD analysis, courtroom discourse analysis, language pedagogy, and accounting research.

Colorblind and Color Mute: Words Unspoken in U.S. Supreme Court Oral Arguments

Colorblind and Color Mute: Words Unspoken in U.S. Supreme Court Oral Arguments

I Can’t See You; Can You Hear Me? Gender Norms and Context During In-Person and Teleconference U.S. Supreme Court Oral Arguments

AbstractFemale attorneys at the U.S. Supreme Court are less successful than male attorneys under some conditions because of gender norms, implicit expectations about how men and women should act. While previous work has found that women are more successful when they use more emotional language at oral arguments, gender norms are context sensitive. The COVID-19 pandemic prompted perhaps the most radical contextual shift in Supreme Court history: freewheeling in-person arguments were replaced with turn-based teleconference arguments. This change altered judicial decision-making and, I argue, justices’ assessments of attorneys’ gender performance. Using quantitative textual analysis of oral arguments, I demonstrate that justices implicitly evaluate gender performance with different metrics in each modality. Gender-normative levels of emotional language predict success in both formats. Function words, however, only predict success in teleconference arguments. Given gender’s salience at the Supreme Court and in broader society, my findings prompt questions about the extent to which women can substantively impact case law.

Asking Versus Telling: The Supreme Court’s Strategic Use of Questions and Statements During Oral Arguments

Supreme Court oral arguments are often characterized as the Court rapidly firing questions at attorneys who struggle to keep up; however, nearly half of the Court’s utterances come not as questions but as statements. I ask whether patterns of questioning and commenting behavior during oral arguments can predict case outcomes and justice votes. To answer this question, I develop a theory of strategic communication that accounts for the differential ways justices—and other strategic actors—use queries and comments during arguments. Using transcripts from 1981 to 2019, I code for use of questions and statements, finding the two theoretically and empirically distinct: where questions increase a party’s chances of winning, statements increase their chance of losing.

The Supreme Spectacle: An Analysis of Public Attendance at the Supreme Court

While many are aware that the Supreme Court allocates seats for the public to view oral arguments, substantive analyses that have measured the motivations for attendance are lacking. I analyze who attends oral arguments using a descriptive approach with a novel dataset of public attendance at Supreme Court oral arguments during the 2019 term. A concurrent assessment of interviews conducted on argument days illustrates notable differences among the motivations of prospective attendees. I conclude by noting that although the linkage between latent case salience and the demand for admission to arguments is not neatly discernable, attendance at the Supreme Court offers an interesting divergence from perceptions of attendance in a traditional courtroom setting.

On the Linguistic Argument for the Adoption of the Library Subject Heading Noncitizen

This linguistic study contributes to the decades-long discussion on the inappropriateness of the Library of Congress Subject Heading illegal aliens by examining its absence in a corpus of US Supreme Court oral arguments and by evaluating automatic translation tool results related to keywords as well as a corpus extract. This linguistic study confirms the ideological bias of the illegal aliens subject heading compared to a plethora of other expressions that legal scholars may use to describe the situations implied under the more neutral umbrella term noncitizen. The automatic translation results for alien and illegal alien also support the notion that the term illegal alien is confined to a United States historical context, which hinders its international comprehension as a subject heading.

“I haven't come a long way, and I'm not a baby”: Task assignment and diversity of the Supreme Court bar

AbstractObjectiveGender disparities in litigation task assignment are not limited to the trial court context; they are present in even the highest of courts in the United States. We explore and seek to explain the gendered patterns of participation by lawyers arguing before the U.S. Supreme Court.MethodsAfter quantitatively describing participation by female attorneys in Supreme Court litigation, we use logistic regression and fractional logit, respectively, to identify factors that influence the degree to which women deliver oral arguments and participate in writing litigant briefs.ResultsDescriptively, we find that male attorneys present more oral arguments than female attorneys, and most litigant briefs are written by male‐dominated teams. In fact, more than a third of the briefs are only signed by men. In multivariate analyses of Supreme Court oral arguments and briefs, we find that women are more likely to argue and sign briefs on issues in which they are stereotypically perceived as more competent (women's issues) and less likely to participate in issue areas where they are perceived to be less competent, like economic issues. Similarly, women are less likely to orally argue in complex cases.ConclusionWhile occupational segregation and other factors may play a role, the participation of female attorneys in this forum is likely driven, in part, by stereotyped assessments of their competency.

Exploring the color-evasive hustle 2.0 and Asian Americans within U.S. higher education race-conscious admissions oral arguments

ABSTRACT Ongoing sociolegal conflicts over affirmative action in race-conscious admissions in U.S. higher education have significant modern-day relevance. This article, informed mainly by Asian American women’s scholarship, explores discourse in U.S. Supreme Court rulings and oral arguments and how litigation actors continue to recycle this discourse in more recent legal strategies that maintain and normalize inequitable access to selective, historically White institutions. The author revisited and extended critical race feminist Kimberlé Crenshaw’s metaphor, the Colorblind Hustle, which describes the anti-affirmative action strategy of deploying Black spokespersons as advocates for eradicating policies that promote racial equity. The author proposes a new metaphor, the Color-Evasive Hustle 2.0, to describe current anti-affirmative action strategies with Asian Americans as plaintiffs in a 2018 lawsuit against Harvard University. Finally, this article elevates interdisciplinary scholarship and legal strategies with potential to expose the Color-Evasive Hustle 2.0 and affirm and sustain educational equity.

A Dynamic Model of Speech for the Social Sciences

Speech and dialogue are the heart of politics: nearly every political institution in the world involves verbal communication. Yet vast literatures on political communication focus almost exclusively on what words were spoken, entirely ignoring how they were delivered—auditory cues that convey emotion, signal positions, and establish reputation. We develop a model that opens this information to principled statistical inquiry: the model of audio and speech structure (MASS). Our approach models political speech as a stochastic process shaped by fixed and time-varying covariates, including the history of the conversation itself. In an application to Supreme Court oral arguments, we demonstrate how vocal tone signals crucial information—skepticism of legal arguments—that is indecipherable to text models. Results show that justices do not use questioning to strategically manipulate their peers but rather engage sincerely with the presented arguments. Our easy-to-use R package,communication, implements the model and many more tools for audio analysis.

Learning to Speak Up: Acclimation Effects and Supreme Court Oral Argument

A long line of literature examines acclimation effects for newly confirmed U.S. Supreme Court justices. However, most of these analyses focus only on how new justices vote or write opinions. Here, we examine how they act during the one public aspect of the Court’s decision-making process—its oral arguments on the merits. In so doing, we seek to determine whether new justices speak, and interrupt their colleagues, less often than do their more senior colleagues. Using data on justices’ speaking turns and interruptions during all orally argued cases from the 1955 to 2018 terms, we find an acclimation effect exists whereby new justices are significantly less inclined to speak and interrupt their more senior colleagues. Our models also suggest gender and judicial ideology influence the extent to which new justices exhibit such effects during oral argument proceedings.

Politics and Judges: Improving Judicial Decision-making

Based on a fundamental study by Ryan Malphurs, «Rhetoric and Discourse in [US] Supreme Court Oral Arguments», the present article will give recommendations based upon conclusions of US-studies of judicial decision-making, thus contributing to the actual discussion of the judicial selection process in Switzerland.

Comparative Oral Argument: What Australia Can Teach Us About the United States Supreme Court (and Vice Versa)

This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel data set of nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, over nearly 25 years from 1995–2018, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable liberal Western democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences in the Australian context as compared to the U.S. Supreme Court — notably: a Chief Justice with additional power at oral argument; unlimited options for the length of argument, which are typically measured in days; and variable panel sizes. Despite this, we find overwhelming evidence that, contrary to jurisprudential orthodoxy, Australian High Court justices engage in substantial and significant judicial advocacy on behalf of the side of the case that they ultimately support. It also finds strong support that, as has been identified at U.S. Supreme Court oral argument, Australian justices are more active when in opposition to a dominant ideological regime or when facing a likely failure to convince their colleagues in the case at hand. That is, both Australian and American justices are more active when they find themselves on the losing side of a case or of a more general ideological era — another recognized manifestation of judicial advocacy. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience (which can counteract one another in the case of more senior female justices). This suggests that striking institutional differences can impact oral argument and make arguments look very different, but we can nonetheless discern underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional” — judicial strategy may simply be part and parcel of having a strong independent judiciary.

Gender, Ideology, and Dominance in Supreme Court Oral Arguments

ABSTRACT Gender bias in political discourse has been demonstrated in many settings, including the US Supreme Court. We investigate the effects of ideology and gender in verbal interactions during Supreme Court oral arguments. We theorize that all justices possess unconscious gender schemas that lead them to speak more during presentations by women but that liberal and female justices likely have conscious egalitarian values that diminish the manifestation of gender schemas. We find that conservative justices speak more when female lawyers are arguing but that liberal justices show no such effect, suggesting that consciously held attitudes can mitigate the expression of unconscious gender schemas.

Humor and Persuasion: The Effects of Laughter during US Supreme Court's Oral Arguments

Is the decision‐making of Supreme Court justices influenced by extraneous factors beyond law and policy? We explore this question by examining attorney‐induced laughter during oral arguments in cases heard by the Court. Drawing on theories of political psychology and social cognition, we posit that laughter serves as a positive affective cue that might favorably dispose justices (albeit subconsciously) to the side causing the laughter. Analyzing oral argument transcripts during the 1986–93 terms, we find that the side causing more instances of laughter is more likely to win the votes of individual justices, even while controlling for other legally and politically relevant factors. We further find that the effect of laughter is conditional—it exerts a heightened persuasive power on ideologically congruent justices, in noncomplex cases, and when the legal argumentation is of higher quality. Our research thus contributes to the growing literature on personal and emotional aspects of judicial decision‐making and, specifically, the emerging scholarly interest in the role of humor during Supreme Court oral arguments.

A Dynamic Model of Speech for the Social Sciences

Speech and dialogue are the heart of politics: Nearly every political institution in the world involves verbal communication. Yet vast literatures on political communication focus almost exclusively on what words were spoken, entirely ignoring how they were delivered---auditory cues that convey emotion, signal positions, and establish reputation. We develop a model that opens this untapped information to principled statistical inquiry: the model of audio and speech structure (MASS). Our approach models political speech as a stochastic process shaped by fixed and time-varying covariates, including the history of the conversation itself. In an application to Supreme Court oral arguments, we demonstrate how vocal delivery signals crucial information---skepticism of legal arguments---that is indecipherable to text models. Results show that justices do not use questioning to strategically manipulate their peers, but rather engage in genuine fact-finding efforts. Our easy-to-use R package, speech, implements the model and many more tools for audio analysis.

Power Dynamics in Supreme Court Oral Arguments: The Relationship between Gender and Justice-to-Justice Interruptions

We examine how gendered norms of professional speech affect the ability of female Supreme Court justices to exercise power in oral argument. In this unique dialogue setting, the justices vie for chances to speak. We argue that gender is an embedded characteristic of oral arguments, and implicit assumptions about gender roles lead to disparities in the balance of authority on the Court. Our results show that women are interrupted more than men, which compromises their ability to achieve their goals during oral arguments. This inequity is compounded by the fact that interruptions of female justices by male justices are associated with lower word counts for the interrupted female justices in ways that interruptions by other women are not. The results corroborate conversational and power dynamics previously explored by sociolinguists, but also extend those findings to accommodate the characteristics of more formal, high-stakes discussions involved in the creation of public policy.

RBG

In RBG, a documentary about U.S. Supreme Court justice Ruth Bader Ginsburg, the activist Gloria Steinem describes Ginsburg as “the closest thing to a superhero I know.” This is how the directors Betsy West and Julie Cohen depict Ginsburg, a woman whose career has been defined by her efforts to eliminate sex discrimination from the law. RBG recounts Ginsburg's journey from Brooklyn, New York, to the Washington, D.C., beltway and highlights her transformation into a liberal icon, arguing that the diminutive no-nonsense justice-loving heroine, whose brain is her superpower, improved women's lives in the last quarter of the twentieth century by broadening their legal rights. Although the film omits one crucial aspect of Ginsburg's identity, it offers a powerful depiction of her essential role in reshaping American law. West and Cohen let Ginsburg speak for herself, interspersing clips from her 1993 confirmation hearings, Supreme Court oral arguments, and recent interviews to guide their narrative. The reporter Nina Totenberg and Judge Harry T. Edwards, among others, explain her professional accomplishments. Ginsburg's former clients Sharron Frontiero and Stephen Wiesenfeld highlight cases she argued. The Republican senator Orrin Hatch and the conservative lawyer Ted Olson offer mild criticisms. Finally, her children, one of her granddaughters, a few friends, and her trainer shed light on what Ginsburg is like outside of work. (Despite her serious disposition she's not above wearing a sweatshirt that identifies her as a “super diva.”)

Beyond Mere Presence: Gender Norms in Oral Arguments at the U.S. Supreme Court

Women are less successful than their male counterparts at Supreme Court oral arguments under certain circumstances. However, existing work relies on mere presence rather than on any action female attorneys take in their argument. Drawing on recent work that stresses gender is performative, I argue success for women at oral arguments is tied to conformance with gender norms, subtle and unconscious expectations of how men and women should communicate. Via a quantitative textual analysis of the 2004–2016 terms, I find attorneys are more successful when their oral arguments are more consistent with gender norms. Specifically, male attorneys are rewarded for using less emotional language whereas female attorneys are successful when using more emotional language. This study represents a more nuanced and performative understanding of gender at oral arguments. These results raise normative concerns about how effective women are at the Supreme Court.