The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument

INTRODUCTION The common perception about oral arguments in the United States Supreme Court is that they are colorful, entertaining, and for the lawyer who happens to be arguing at that moment, overwhelmingly nerve-racking. (1) But many appellate practitioners question whether oral arguments are at all useful, (2) and some explicitly argue that the Justices' decisions are preordained. (3) They believe that oral argument today is a mere formality, designed at a minimum to help the Court write a better opinion, although it can sometimes be used to "clarify facts and to test the vulnerability of tentative theories and approaches." (4) But whether oral arguments are useful in the sense of being able to sway one or more of the Justices' votes, most practicing Supreme Court advocates agree on one proposition: No matter how well or poorly the argument goes, one simply cannot tell from their questions how the Justices are going to vote. (5) This article challenges that view, and suggests that oral arguments have more predictive value--and are thus more useful--than most people think. My research indicates that by keeping track of the number of questions each Justice asks, and by evaluating the relative content of those questions, one can actually predict before the argument is over which way each Justice will vote. (6) This article also challenges the theory that the Justices use their questions to pull out the strongest and weakest points of each side equally, by showing that in the arguments I observed, they played devil's advocate much more often toward the parties with whom they disagreed than they did toward the parties they supported. Part One of this article establishes the methodology I used to analyze the Justices' questions--specifically their content, tone, and number. Part Two summarizes my findings about oral arguments in the Supreme Court as a whole and suggests that predicting the outcome in a particular case may actually be possible. Part Three analyzes the questioning style and tendencies of each Justice. Finally, Part Four reports my predictions in three then-undecided cases, and, as a means of testing my theory, I compare my predictions to the actual outcomes. I. METHODOLOGY I attended ten oral arguments at the Supreme Court during the October 2002 Term. Using the methodology described below, I tracked all of the questions asked from the bench. After the first seven of those ten cases were decided, I compared the content and tone of the Justices' questions in those cases to their decisions in each. This analysis allowed me to develop a theory about the predictive value of oral argument, which I then tested by predicting the outcomes in the three cases that had not yet been decided, and comparing my predictions to the actual results. (7) A. Tracking the Questions During oral argument, I recorded every question and noted which Justice asked it. (8) Next, I assigned a score to each question based on its content, using a scale of one (the most helpful questions) to five (the most hostile). For example, a one was assigned if the Justice asked a question that was designed to elicit the lawyer's best argument. Thus, helpful questions that began with: "Aren't you really trying to say that ...," if the lawyer really was trying to say that, would be given a one or a two. A five, on the other hand, was assigned to very hostile or argumentative questions. For example, a statement that began with: "I just don't see how your argument could possibly be correct," would receive a five. A three was assigned to completely neutral questions, or questions meant only to clarify a particular fact or minor point. I also tallied the number of questions each Justice asked, dividing them into categories: (1) questions asked in total; (2) questions asked per case; (3) questions asked of the party with which the Justice sided in the final decision; and (4) questions asked of the party against which the Justice sided in the final decision. …