Voting Fluidity and Oral Argument on the U.S. Supreme Court

Abstract

Although scholars have established that oral arguments play a role in Supreme Court decision making, a fundamental question remains: can oral arguments change justices’ votes? Using data on the positions taken by Justices Blackmun and Powell prior to oral arguments, the authors seek to answer this question while implicitly addressing another: how effectively can attorneys persuade the Court during arguments dominated by justices attempting to persuade each other? The authors find that in a significant minority of cases, justices are persuaded to switch their vote as a result of oral argument and that high-quality attorneys play a central role in that persuasion.

A Dynamic Model of Speech for the Social Sciences

“…If strategic justices are always successful in persuading their colleagues, the genuine-voting and strategic-signaling accounts become observationally similar in many cases. While we find this level of persuasiveness to be implausible in light of extensive qualitative work on the courts (Ringsmuth, Bryan, and Johnson 2013;Wolfson 2001), there is considerable room for future work to improve on our analysis. These improvements may include more rigorous formal modeling of strategic interaction in the deliberative process, collection of better pre-argument proxies for justice predisposition and case controversiality (e.g., circuit court votes; see also Online Appendix Section 4.6, which suggests that ideologically directed skepticism may reveal intensity of preferences by issue area), or analysis of natural experiments (e.g., exploiting justice retirements).…”

Taking Note: Justice Harry A. Blackmun's Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court

“…Indeed, Rehnquist once wrote that, "In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came on the bench." 47 Systematically, one recent study reveals that Blackmun actually changed his votes in some cases based on the arguments counsel presented, 48 doing so just over ten percent of the time. That he switched at all suggests that attorneys can, and sometimes do, utilize their thirty minutes to persuade justices to change their positions.…”

Litigating Change? Social Movements and the Court System

“…Some sociolegal scholars point to the importance of framing as legal activists engage in "naming, blaming, and claiming" (Felstiner et al 1980;Pedriana 2006;Silverstein 1996;Stobaugh and Snow 2010). Research shows that framing by legal counsel can play a highly influential role in shaping case outcomes, establishing legal precedent, and influencing the development of broader policy (Epstein and Kobylka 1992;Ringsmuth et al 2012).…”