The New Oral Argument: Justices as Advocates

Tonja Jacobi* & Matthew Sag**

This Article conducts a comprehensive empirical inquiry of fifty-five years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.

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© 2019 Tonja Jacobi & Matthew Sag. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Northwestern Pritzker School of Law, t-jacobi@law.northwestern.edu.

**Georgia Reithal Professor of Law, Loyola University of Chicago Law School, msag@luc.edu. We thank Jerry Goldman and the Oyez Project for making Supreme Court transcripts more accessible. We thank Dr. Linda Rice and Dr. Michael Zost, without whom this project would have been impossible. We also thank John Hart, Timothy O’Neil, Kyle Rozema, Barry Sullivan, Scott Sundby, Michael Heise, participants at the Conference on Empirical Legal Studies at Michigan Law School, 2018, and the faculties of John Marshall School of Law, the University of Miami Law School, and Northwestern Pritzker School of Law for their invaluable comments and constructive criticism.