When Is Oral Argument Important? A Judicial Clerk's View of the Debate

I. INTRODUCTION To say that oral argument is important seems unremarkable. In truth, however, this statement may be accurate in only a few close cases. In these cases, litigants and courts might benefit from argument sessions that are longer than those typically granted. But in cases that do not meet this standard, oral argument should not be granted at all. A. Surveying the Conventional Wisdom The typical analysis of oral argument answers this question: "Does oral argument matter?" (1) It casts the importance of oral argument as an all-or-nothing proposition that matters in every case or does not matter in any case. Faced with this choice, some judges may respond by conceding that oral argument does not matter at all. (2) For example, many observers have concluded that Justice Thomas places minimal, if any, importance on oral argument. As Supreme Court visitors have observed, he doesn't typically speak or ask questions during oral argument. (3) Justice Thomas has succinctly explained his trademark silence, stating, "[I]f I wanted to talk a lot, I would be on the other side of the bench." (4) He has also stated that oral argument is "not the real meat" of the Supreme Court's role. (5) This view is likely shared by other judges, for as one writer concluded, "most judges will admit ... an oral argument rarely wins an appellate case." (6) Many lawyers also believe that oral argument is not important. One author asserts that "[m]ost lawyers can count on the fingers of one hand the number of times oral argument actually seemed to make a difference," (7) and another states that "[c]onventional wisdom holds that oral argument is less important than in the past." (8) Lawyers' and judges' belief in the conventional wisdom might result from their exposure to a trend in the federal courts of appeals suggesting that oral argument is unimportant--or less important than in the past: The time allotted for oral argument has consistently decreased over time. In the Supreme Court, oral argument originally could last for days; was restricted to two hours per attorney in 1849; was reduced again to periods consisting of forty-five to ninety minutes per side in 1911; was cut to thirty minutes or an hour per side in 1931; and now stands at thirty minutes per side. (9) Today, federal appeals courts typically limit oral argument to a period of from ten to fifteen minutes per side. (10) All of this makes it easy to understand why lawyers and judges might ask whether oral argument still matters. But that is the wrong question. The better, if less conventional, question is, "When does oral argument matter?" B. Answering a Less Conventional Question Oral argument significantly impacts the outcomes of only very close cases. Of course, the likelihood that a case is close increases at each appellate level, as parties should be less inclined over time to pursue arguments that have little chance of success, and controlling precedent is less likely to exist as the case survives various levels of appellate review. (11) It follows that oral argument is almost always necessary in the Supreme Court, as any case in which certiorari is granted presumably presents a close question with no clear answer. (12) In fact, Chief Justice Rehnquist once admitted that "[i]n a significant minority of the cases in which I have heard oral argument, I have left the bench feeling different about a case than I did when I came on the bench." (13) Justice Scalia has also recognized the importance of oral argument, stating that if a lawyer satisfies one or two critical questions during oral argument, that attorney will have his vote. (14) And at least one study of oral argument in the Supreme Court concluded that oral argument is "at times determinative of the outcome." (15) In comparison, in the vast majority of cases heard in appellate courts other than the Supreme Court, the conclusions that judges reach after consulting only the briefs will not be swayed by oral argument. …