The Oral Argument "Game": Questions, Questions, Questions

During oral argument, justices ask questions to communicate directly with counsel about a particular position or issue of law that may have been left less than clear in their briefs, or about issues on which members of a panel might disagree. This is especially true when there is no bright line. Aside from clearing up any misperception or misinterpretation, questions may also serve as a means of communication between the justices; a flag, of sorts, to signal the other members on the panel just which side of an issue they agree, or disagree with. Justice Antonin Scalia confirms this: “It isn’t just an interchange between counsel and each of the individual justices; what is going on is to some extent an exchange of information among justices themselves.”

An unlikely source confirms this premise--game theory literature. Game theory focuses on the study of human interactions and how rational strategies and motives can influence an eventual outcome. In Cheap Talk, Coordination, and Entry, 18 RAND J. ECON. 34 (1987), Joseph Farrell suggests “cheap talk can help coordinate behavior to produce . . . equilibria.” Through this lens, cheap talk refers to questions justices ask. Equilibria would refer to the ultimate stance justices take on an issue, in relation to one another. Applying this to oral argument, justices may be involved in a tacit communication strategy, the outcome of which may have just as much to do with personal and ideological stances between justices, as it does with examining the lawyers arguing the case. After all, argument is held before a panel and a decision requires a majority.

For some, adversarial questioning may be uncomfortable. But since questioning is a means of communication, the act of being questioned often offers a glimpse into the reason the question is being asked. A good example of this comes from Justice Blackmun’s oral argument notes concerning the outcome of a case: “[a]ll justices in their questions telegraph their attitudes. Result will be 6-3 or 5-4 to reverse.” In this instance, Justice Blackmun’s informed deduction about the outcome turned out to be correct: by a 5-4 vote the case was reversed and remanded.

To be sure, lawyers will be questioned during oral argument and answers must be provided. No oral argument preparation should be complete without a plan to address questions from the justices hearing your argument. To effectively deal with questioning, attorneys must know and understand the issues from both sides, and prepare strategies to handle questions during initial preparation. These questions are more than just cheap talk.

i Oral Advocacy Before the United States Supreme Court: Does it Affect the Justices’ Decisions? Timothy R. Johnson, James F. Spriggs II, Paul J. Wahlbeck, Washington University Law Review, Volume 85 No.3 Pg. 464 (2007): Interview by Paul Duke with Antonin Scalia, Associate Justice, U.S. Supreme Court, THIS HONORABLE COURT (PBS Video 1988).

ii Washington University Law Review, Volume 85 No.3 Pg. 505 (2007)

iii Washington University Law Review, Volume 85 No.3 Pg. 513 (2007)

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