Category Archives: Appeals

How much do oral arguments matter?

Much has been said in the wake of the US Supreme Court’s decision today upholding (for the most part) President Obama’s health care overhaul, the Affordable Care Act. I don’t have a lot to add to the substantive analysis being done (though if you’re interested, SCOTUSblog has a whole host of coverage).

What I found interesting as an appellate practitioner was how this case provided the opportunity to emphasize the old adage that oral arguments rarely make that much difference to the eventual decision and can often be a poor predictor of how a case will come out.

The Wall Street Journal’s law blog touches on this topic today:

Thursday’s ruling on the health-care law proved, once again, that oral arguments can be a weak predictor of outcome.

In the ruling today, a divided court upheld the individual mandate as a tax, accepting the Obama administration’s backup argument. But at oral arguments, that issue — whether penalizing people for not buying health insurance fell within Congress’s taxing power– had a low profile during the March arguments.

The WSJ law blog fails to ask the bigger question, though — why do oral arguments rarely make much difference?

I suspect at least part of the answer to this question lies in how courts prepare for oral arguments. In general (though not every court works exactly this way), long before oral argument, a judge’s chambers is assigned the case. That chambers (the clerks in conjunction with the judge) reads all the briefs, does their own independent research, and then drafts a memo to all the other chambers discussing and analyzing the procedure of the case, each sides’ arguments, the pertinent case law, and makes a recommendation as to how the case should turn out. Then, all the other chambers review that memo in conjunction with the briefs and the pertinent cases. If some judges do not agree with the recommended outcome in the memo, they can write their own memo explaining their view of the case. There can also be informal discussions between judges. In some courts, like Washington’s Division 1 Court of Appeals, the judges will even meet before oral argument to talk about the case, their thoughts, and questions, though they don’t technically vote.

In short, a lot of behind the scenes work is done on a case before oral arguments even begin. And therefore most judges have an idea of how they think the case should come out before oral arguments even begin. So it’s the rare oral argument that actually changes a judge’s mind about the outcome.

Additionally, at oral argument, the judges are frequently responding to the arguments the lawyers’ make. If the lawyers at oral argument don’t focus on the issue the judges find dispositive, it may be misleading to rely on the questions and attitudes of the judges toward those arguments.

We probably won’t ever know fully what happened in this case and why for a long time, if ever, despite the rumors circulating that Chief Justice Roberts switched his vote at the last minute.

All of this simply underscores an important practice tip: the briefs in an appeal are far more important than the oral arguments. That’s something always worth being reminded of.



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Filed under Appeals, US Supreme Court