Oral arguments and briefs have a great influence on jurists’ decisions in the courts. In his book, Oral Arguments and Decision Making on the United States Supreme Court, Timothy Johnson notes that judges consider a number of issues such as oral arguments, political considerations, and external factors, which are not part of the case records prior to making an ultimate decision in a particular case. Conventionally, jurists do not decide on how to decree on a particular case before listening to it.
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The intent of this paper is to affirm that oral arguments affect how judges make decisions in courts and in this particular instance, in the Supreme Court. The paper begins by a summary of a reading Timothy Johnson’s book, Oral Arguments and Decision Making on the United States Supreme Court.
Summary of the oral arguments and decision-making on the US Supreme Court
Johnson argues that advocates should not use oral argument as a tool for influencing judges, but rather for accomplishing the goals that the judges have set.
He further asserts that conscious of the existing external factors that might influence the process of decision-making and the need for creating strong internal coalitions, judges capitalize on the arguments to get facts, form legal, and procedure matters for conference deliberation, and finally use them to develop their written judgments (Johnson 28). Johnson presents a properly researched writing that helps students comprehend how strategic decision-making is achieved in the Supreme Court.
Johnson notes that litigation involves the presentation of legal problems in two opposing sides with the exemption of the amicus briefs, with the two opposing sides presenting their arguments on biased grounds (26). Conscious of the bias-based arguments, judges utilize oral argument as a tool for determining issues, which are of greatest importance irrespective of whether they were tabled by advocates.
How oral arguments affect decision-making in the Supreme Court
In his book, Johnson refers to a number of cases tackled in the 1970-80s and uses them to compare the briefs presented by the parties and the questions that developed during the oral argument session. The aim of the latter is to determine if the court simply requests the parties to explicate the issues that they wrote in their briefs or they go past the issues outlined in the briefs and seek clarification on new developments.
According to Johnson, most issues raised by judges, close to 80%, are new concerns that were not tackled by the parties and amicus (98). Furthermore, in instances where the jurists raise issues in relation to the briefs, they mainly seek to understand how particular issues in the briefs affect public policy. In essence, judges are concerned with how the litigants’ briefs influence external factors, for instance as the Congress to help them determine policy options that should adopt in coming to a particular conclusion.
Indeed, oral argument plays a critical, but distinct role for advocates and judges. When an advocate presents his or her oral argument, he or she is able to clarify facts related to the cases that helps the judges when examining what the case actually entails (Johnson 47). By simply tabling the briefs, they are never assured if the court heard their plea, as they are not certain if the judges read the briefs.
Even the responses from the judges do not erase the doubts as the judges’ legal clerks normally prepare the responses. Oral argument is an important communication aspect to the court as it assures the litigants that they have communicated and the genuine people have heard their cases. It affirms the significance of face-to-face communication. The nature of communication adopted by a lawyer during the oral submission is of great essence.
Moreover, oral arguments help judges to get the main points because lawyers have to be precise. It compels advocates to concentrate on issues, which they consider as important. Since lawyers often have a fixed time, possibly one or two hours, to present their oral argument, the litigant is thus compelled to highlight the important issues. This use of language is absent in briefs where lawyers have the liberty to respond to the laws and facts that they find relevant for their case.
Moreover, lawyers will be in search of fresh perspectives in relation to the case. As a result, jurists are able to seek clarification on some of the questions that emerged from the briefs. Unlike briefs, justices are in a position to know the highlights of the case as they can easily question the litigant to explain to the court what he or she considers as collateral issues, which should be put into consideration during their judgment.
Subsequently, if an advocate fails to clarify some of the issues he or she raised in the brief, then he or she cannot blame the court if it makes a little drift from the issues when making its judgment. In essence, the oral argument has the power to shape the outcome the judges intend to make. The justices can use it to get backing for their verdicts and ultimate results.
Johnson notes that most issues that justices raise during an oral argument presentation often appear in their written opinions (73). For instance, in the case of Roe v Wade, a question that emerged during the oral argument later developed to a Court’s theory (Johnson 75). In essence, oral arguments give judges an instrument for substantiating the reasons why they particular decisions.
The communication amongst judges is also a vibrant occurrence during oral arguments. This aspect helps judges in raising matters that probably a litigant had shied from presenting. Furthermore, raising such questions helps judges to tackle some issues that would complicate the decision-making process if not handled early enough and in the open.
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Indeed, the time that justices get to have a collegial deliberation in the Supreme Court is normally inadequate, and thus they may utilize a portion of the oral argument session to consult each other on the possible outcome of a case (Johnson 94).
Nonetheless, the major role of oral argument is to endow justices with adequate and pertinent information. Justices are coupled with reservations that can only be altered by relevant information and laws. From this approach, litigants present oral arguments to give justices information that can shape how they decide on their client’s case.
In essence, the aim of advocates is to table issues and link them to the current law coupled with how they are going to affect the public policies. Judges rely on the oral submissions made by lawyers to assist them in advancing their goals. A skilled oral advocate can largely influence the outcome of a given case. For instance, in the case of Jensen v Quaring (1985), Justice Blackmun confessed that the oral arguments made by the respondents simplified his decision-making process.
Considering the aforementioned issues, what type of information that justices seek after that eventually influences their position in a particular case? At times, justices simply need to have a clear-cut understanding of the issues presented by litigants. Jurists raise questions on certain issues not only to get facts, but also to determine the type of approach that they should adopt.
Lawyers are thus compelled to think beyond the facts and law applicable in a certain case and they are advised to incorporate the social and political effects of the case in their arguments because judges will consider social and political impact of their ruling with respect to the case. Judges try to associate every point raised by advocates to other scenarios in a bid to construct the actual outcome of the arguments. Essentially, they want advocates to guide them towards a particular path.
Nevertheless, judges do not communicate their strategies directly to litigants. One can tell approach adopted by the courts by examining the questions that justices raise during oral arguments. Recent studies indicate that one can simply predict the outcome of a case by tallying the amount of questions directed to a given party. Apparently, a lawyer that receives a certain question ends up losing his or her case (Johnson, 91).
Moreover, the prevailing tone during the oral argument can affect the ultimate decision made by judges. The tone gives a glimpse of the speaker’s ambitions, intentions, and aspirations. Presumably, when judges adopt a harsh tone towards a given lawyer, then he or she is likely to lose the case Jonathan, (28).
Johnson comes up with a number of models that Supreme Court judges apply when making decisions with respect to oral arguments. Judges are affected by the quality of information presented by a litigant. In that, judges are likely to vote for the attorney who offers the best oral argument. In this regard, it can be noted that judges may be influenced by a lawyers experience and skills in oral arguments. For instance, judges are likely to be convinced by a Solicitor General that an advocate who has a one year in experience.
Another argument is that policy preference plays a role in how judges make decisions after an oral argument. In that, judges are likely to support attorneys whose presentations are close to their policy preferences. Nonetheless, the law restricts how judges are influenced by their ideological beliefs.
To explain the latter, Johnson (94) develops the conditional effect of oral advocacy theory where he argues that the proximity of the ideological position of judge in comparison to an attorney is likely to be influenced by the credibility of an attorney’s oral argument. Moreover, the oral argument plays a substantial role in complex cases. Using the conditional effect of information need theory, Johnson (102) asserts that the influence of oral arguments on judges in dependant on the complexity of a particular case.
The importance and impact of oral argument on the Supreme Court‘s decisions can never be ignored. Not every case is decided on oral arguments; however, when justices begin requesting advocates to expound certain issues during oral arguments, then its significance cannot be overlooked.
Oral arguments influence all parties in the Supreme Court and the eventual decision made by judges. By focusing on the important issues, it aids judges in deciding on the strategy that they will adopt in their judgment. On the other hand, justices ask the lingering questions that might have developed from the briefs and get clarification on the important issues of the case.
Moreover, it gives judges an opportunity to have collegial consultations on issues that would have possibly made it difficult to determine a case. The impact of oral argument on the Supreme Court cases can thus never be underrated, as it influences the decisions made by judges despite the presence of briefs.
Johnson, Timothy. Oral arguments and decision-making on the United States Supreme Court, New York: State University of New York Press, 2011. Print.