Oral arguments “matter a great deal,” Senior Judge Raymond Randolph told the Federal Bar Association’s Section on Taxation earlier this month, as reported in Tax Notes Today (subscription required). According to the article by Shamik Rivedi, Judge Randolph “cited a situation in which he and his fellow judges came into a hearing one day believing they would rule one way in each case, but after oral arguments, they had changed their minds in each one.” (The D.C. Circuit usually hears three or four cases in a sitting.)
Not all judges are so sanguine about the potential for oral advocacy to change outcomes. The four former D.C. Circuit judges who now sit on the Supreme Court, for example, have expressed different views on the subject.
Justice Thomas has famously questioned the utility of oral argument after a case has been fully briefed, asking, “So why do you beat up on people if you already know? . . . I refuse to participate. I don’t like it, so I don’t do it.”
On the other hand, Justice Scalia, in a book co-authored by Bryan Garner, wrote that while oral argument rarely changes a judge’s mind, it often helps an undecided judge make up his mind when “the case is a close one.”
For her part, Justice Ginsburg perceived that cases are more often lost than won at oral argument: “in most cases,” she said, oral argument is “a hold-the-line operation. In over eighteen years on the bench, I have seen few victories snatched at oral argument from a total defeat the judges had anticipated on the basis of the briefs. But I have seen several potential winners become losers in whole or in part because of clarification elicited at argument.” (Subscription required).
After his first year as a D.C. Circuit judge, Chief Justice Roberts concluded, like Judge Randolph, “that oral argument is terribly, terribly important.” But he expressed that importance somewhat differently: “Oral argument matters, but not just because of what the lawyers have to say. It is the organizing point for the entire judicial process. . . . Oral argument is also a time—at least for me—when ideas that have been percolating for some time begin to crystallize.”
- Shamik Trivedi, How Tax Cases Get Appealed by the Government, Tax Notes Today (Mar. 5, 2012) (subscription required) (“Randolph also advised attorneys to avoid using block quotes and footnotes” in appellate briefs because “those references commonly get ignored.”)
- Timothy Russell Johnson, Oral Argument and Decision Making in the United States Supreme Court 15 (2004) (quoting Chief Justice Rehnquist’s statement that “in a significant minority of cases in which I have heard oral argument, I have left the bench feeling different about the case than I did when I came on the bench. The change is seldom a full one-hundred-and-eighty-degree swing.”)