A Dipstick for the Supreme Court

The attached article is interesting, but the conclusion is a little like saying that cigarettes are the leading cause of statistics. His premise is that the lawyer in oral arguments before the Supreme Court that is asked more questions by the Justices tends to lose the case. The article author is extending that line of thought to state that in the 5–4 decisions in the last Court term, the side asked more questions by Chief Justice Roberts tends to be the loser.

I believe that the author is ignoring the fact that the Justices come to the oral argument fully prepared by written briefs of counsel, third party (Amicus) briefs and memoranda of law from their own clerks. It seems reasonable to me that the Justices would use the oral argument process for the purpose of giving the lawyers on both sides an opportunity to expand on areas that concerned the individual Justices in their case preparation. Expanding that to say that the side with more questions indicating more concerns by the Justices is likely to lose is somewhat redundant.

One of the cases mentioned in the article dealt with the question of determining whether a patent application is unique technology or so obvious to any person familiar with the literature of the field as to not deserve a patent. Better to have asked if the conclusion of the article is so obvious as to be a waste of newsprint. More useful, I would think, to conclude that the CJ is on the winning side in most of the 5–4 decisions – but we have already noted the shift by the Court with the Bush appointees in place.

Must be a slow news week at the Supreme Court (also somewhat obvious as the Supreme Court Term has ended until the first Monday in October)

My Source: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1184058397113 When in Doubt, Look to Roberts for Outcome of Supreme Court Cases Tony Mauro Legal Times 07-11-2007

In 2004, then-appeals court Judge John Roberts Jr. tested a newly discovered theory for predicting Supreme Court outcomes. Using oral argument transcripts, he tallied the number of questions justices asked of advocates in a significant sampling of cases.

Eighty-six percent of the time, Roberts reported in a talk to the Supreme Court Historical Society, the lawyer for the party that ultimately lost had gotten the most questions.

"The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions."

Now that Roberts, as chief justice, is one of the nine robed ones who get to ask the questions, it turns out that he, more than any other active questioner, is affirming that predictive pattern.

A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored.

The numbers tend to support the growing perception that Roberts can be a sharp, even acerbic questioner. In Hein v. Freedom From Religion Foundation, the establishment clause case involving taxpayer standing, Roberts asked winning Solicitor General Paul Clement only three questions, while hitting Andrew Pincus of Mayer, Brown, Rowe & Maw, the lawyer for the losing foundation, with 23.

In one curveball, Roberts pointed to Court Marshal Pamela Talkin and asked Pincus if a taxpayer could sue her for reciting the words "God save the United States and this honorable Court" before each session. Pincus said no and explained his reasoning, but the justices were unconvinced.

Roberts also asked probably the most sarcastic question of the term, at the expense of Akin Gump Strauss Hauer & Feld's Thomas Goldstein in the patent case KSR International v. Teleflex. At issue was the standard for determining when an innovation is so obvious that it does not deserve a patent. "Who do you get to be an expert to tell you something's not obvious?" Roberts asked. "I mean, the least insightful person you can find?"

Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25 -- about half.

These findings are reported by University of Kansas psychology professor Lawrence Wrightsman, author of a forthcoming book of empirical analyses of Supreme Court oral arguments. Oxford University Press published his book "The Psychology of the Supreme Court" last year. Wrightsman also documented the fact last year that with the retirement of Sandra Day O'Connor, the number of words oral advocates were able to deliver before being hit with a question shot up.

Wrightsman's latest analysis builds on a simple study performed in 2002 by then-Georgetown University Law Center student Sarah Shullman. She observed 10 oral arguments and found that in the aggregate, the side that ultimately lost got more questions -- and more hostile ones -- than the winning side. Her study was published in the Journal of Appellate Practice and Process. Roberts, in his historical society talk, modeled his own study after Shullman's.

Wrightsman and his students have now done a tally of all of the oral arguments of the past five terms and ended up finding a less strong correlation than was found in the earlier studies of either Shullman or Roberts. They determined that the winning side got fewer questions in only 60 percent to 65 percent of the Court's cases.

But the correlation is stronger in what Wrightsman has categorized as the ideological cases. In the term just ended, the losing side in ideological cases got more questions 73 percent of the time.

So, what to make of Roberts' penchant for asking more questions of the side he is against? One could argue that he is giving that side more opportunities to convince him -- and they fail. But Wrightsman thinks it suggests that Roberts comes to the argument with a "predisposition." He adds, "I don't want to say he has already decided the case, but he is setting a higher standard for one side than for the other."