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"You Can Do This Job Without Asking a Single Question":

The Legal Times covers Justice Thomas' speech to the Federalist Society's annual lawyers' conference in Washington, D.C. During a brief question and answer session following his speech, Thomas was asked about one of the Court's enduring mysteries: Why do his colleagues ask so many questions at oral argument?

The Washington Post covers the conference here, including last night's remarks by President Bush.

I have matters to attend to In Cleveland this morning, but I hope to make it down in time for Chief Justice Roberts' remarks later tonight.

Mongoose388:
Let me be the first to suggest it's so we know that some of them are at least awake, if not alert....
11.16.2007 10:55am
one of many:
I'm just happy that this time the WaPo didn't say the Federalist Society rejects the amendments.

I wouldn't go so far as to say a supreme never needs to ask a question. A large number of the questions asked seem to be unnecessary, however. They do make a nice show however, especially when everyone gets confused about what is being asked in a hypothetical with multiple conditions.
11.16.2007 1:25pm
wooga:
If I were an appellate judge, my purpose in asking questions would be to harass and punish the attorneys for poorly written briefs, or (if I was in a good and charitable mood) to offer the attorney a chance to rehabilitate his poorly written brief.

If the briefs are properly written and actually address each other's arguments directly (after several layers of appeals, there is no reason for the briefs not to adequately address each other), there really isn't much need for SCOTUS to ask "new" questions - unless the attorneys and lower judges and clerks were so dense as to miss some 'brilliant' line of inquiry raised for the first time in Justice Souter's questioning... :/
11.16.2007 2:03pm
abb3w:
The question I have is why he asks so few. Is he that blindly certain of the unvarying correctness of his own line of reasoning that he sees no need to investigate whether someone else might provide an insight on the issue he hasn't considered yet? Or does he merely consider the job of a judge to seek the victor instead of the truth?

(No, I don't like him. Scalia seems worse, though.)
11.16.2007 2:23pm
Kevin P. (mail):
abb3w's question is a good example of a question that is really not worth asking, considering that it is a statement of opinion that makes its author feel better about himself.
11.16.2007 3:00pm
SMatthewStolte (mail):
"One thing I learned in the last 16 years is that you can do this job without asking a single question," Thomas said, to rousing applause.

I understand Thomas' response, but I find the rousing applause to be rather strange. Isn't this really a matter of style?
11.16.2007 3:12pm
OrinKerr:
abb3w,

I'm curious: What percentage of questions asked at Supreme Court oral argument do you think are (a) designed to investigate to find greater insight into the truth vs. (b) designed to put an argument in a bad or good light to persuade the swing vote to rule the way the Justice asking the question has already decided he or she will go?
11.16.2007 3:26pm
abb3w:
"Do not listen to the raven," said the crow, "for he is a ill-manned eater of carrion, and black feathered besides."

That the job can be done that way does not mean it ought to be done that way. My experience has been that an unwillingness to ask questions and examine the answers is a symptom of being blinded by one's personal vision of The Truth... accurate or not. But I Am Not A Lawyer; I'm merely an opinionated citizen and layman philosopher.
11.16.2007 3:33pm
Steve2:
What I don't understand is why vigorous interrogation isn't present in trial courts, not just the appellate ones. Why don't trial judges - and more importantly, jurors - get to ask questions, and lots of them?

I think the problem's that the wrong questions - Professor Kerr, your category b questions - may have become so dominant at the SCOTUS that they're wasting the already too-short time available for category a questions.
11.16.2007 3:38pm
abb3w:
OrinKerr: abb3w, I'm curious: What percentage of questions asked at Supreme Court oral argument do you think are (a) designed to investigate to find greater insight into the truth vs. (b) designed to put an argument in a bad or good light to persuade the swing vote to rule the way the Justice asking the question has already decided he or she will go?

My cynical layman's guess is about 10% (a), 70% (b), and the remaining 20% a mix of both, including any attempts to give a lawyer enough rope to hang himself, and attempts to see if the lawyer is inclined to argue on the lines that the Justice is already reasoning but not yet decided. I admit I haven't read too many transcripts (I'm not even a law student), mostly those where civil liberties or technology issues are in question. Call it maybe two or three per year, tops.
11.16.2007 3:51pm
OrinKerr:
abb3w,

Interesting. If most of the questions are not a search for truth (3:51), though, why do you suggest that Justice Thomas does not ask questions because he is not interested in searching for the truth (2:23)? Or maybe I misunderstand your suggestion?
11.16.2007 4:01pm
rarango (mail):
Wooga's assessment seems on target and there should rarely be the need for questions. In fact questions would suggest a badly written brief or bad oral argument which needed clarification. My suspicion is that abb3w's view is more appropriate for an investigator--and not a jurist. But IANAL
11.16.2007 4:57pm
Christopher Cooke (mail):
Orin

I see nothing in abb3w's answers. Maybe abb3w thinks (1) most questions should be to find out the truth (2) most questions aren't asked for that purpose, though, but are attempts to swing other justices' votes and (3) Justice Thomas doesn't ask questions to elicit the truth, or to swing other justices, because he thinks he knows the former and is not interested in the latter.
11.16.2007 8:02pm
TCO (mail):
Can you really? I can't do any kind of judgemental job at work (inspecting projects, deciding on initiatives, etc.) without asking questions. Could Richard Feynman have understood the shuttle crash without a curious attitude?
11.16.2007 11:00pm
TCO (mail):
wooga's points seem good. And I would not be surprised even at the SC level if some questions are not needed for both purposes that he mentions.
11.16.2007 11:04pm
abb3w:
Christopher Cooke is more or less correct. That more questions are intended to persuade than to seek the truth does not rule out that some are intended to do each... and yet he asks scarcely any. It's also possible his paucity of questions is some combined result of error in my estimate of the overall ratio, his having a 100/0 a/b distribution, and his feeling most of the other Justices ask all the needed investigative questions required without his bothering. In my ignorance, Occam's razor leaves me disinclined to this view; those more informed may be better posited to disagree.

There's also the secondary issue, that if you can persuade a reasonable, semi-open minded person who is at least slightly more likely to be correct than not that your view is correct, it becomes less likely that you are grievously mistaken (via probability theory). Again, it's alternately possible he doesn't think his peers qualify.

I admit, wooga's explanation is far better for the dignity of the court. Still, the Supreme Court is effectively the last chance to get a decision right. The consequences of error would seem to justify a trifle of exertion.
11.17.2007 11:10pm
MC:
What's the purpose of oral argument if you can't ask questions? Shouldn't the briefs by themselves be enough to provide the substantive arguments to a sufficient degree to allow the judge to rule on the case?

If we don't ask questions during oral argument, presumably the speeches made by lawyers are supposed to provide some additional persuasion to the arguments that are already made in the brief. But is this really that big a deal - does this ever really help judges identify the legally correct or preferable position?

If you ask questions it helps judges reach more accurate decisions in at least two ways:

1) It provides a way for the judge to have parties address each others arguments where the written arguments fail to do so in a sufficient manner. So for instance plaintiff argues X because Y, and Defendant argues not Y because of Z. The judge can ask plaintiff to address Defendant's argument, and then if plaintiff successfully does so, ask the defendant to address plaintiff's counterargument etc.

2) It provides a last chance for 'natural justice' so as to allow for better decision making by the judge. A lawyer gets to hear what the judge considers a potential weakness in the argument, and gets to point out any errors a judge has made in reaching that point.
11.18.2007 12:49am
Randy R. (mail):
Part of the purpose of oral arguments is to get the attorney's to admit that there are holes in their arguments, and force them to address them. Almost every issue that gets to a higher level has weaknesses somewhere. (whether they are relevant is another issue). But it's good for attorney's to admit that the other side has viable points and how that affects all arguments.
11.18.2007 3:07am
Pluribus (mail):
Steve2 wrote:

What I don't understand is why vigorous interrogation isn't present in trial courts, not just the appellate ones. Why don't trial judges - and more importantly, jurors - get to ask questions, and lots of them?

In every trial court I've been in, the judges ask questions. Of course, the attorneys have the right to interpose objections. Surprisingly, the judges sometimes sustain objections to their own questions. Some states, including my own, permit jurors to ask questions in writing. The rules of evidence do not permit any and all questions, but only those that seek to elicit admissible evidence.
11.18.2007 2:59pm
Pluribus (mail):
If you can do the job without asking a single question, by the same logic can't you do the job without attending oral argument? Maybe even without reading a single brief? I mean, if you already know what's right and what isn't--why do you need any help at all from the lawyers, or the other judges? Just tell your clerk how to write the opinion and be done with it.

I have argued cases before appellate judges who actively engage with the lawyers, asking questions and listening to the answers, then asking follow-up questions. I have argued cases before appellate judges who never ask questions. I much prefer the former, because their questions tell you what they think is important about the case. The latter are telling you nothing--not even whether they have read the briefs. I remember one judge who closed his eyes and remained stoically silent throughout the argument, so it wasn't even possible to determine if he was awake. Maintaining stoic silence when facing advocates who are arguing their hearts out, representing issues that may amount to life and death for their clients, and that vitally affect the welfare of the republic, seems to me arrogant. It might be likened to maintaining stoic silence when guests enter your home.
11.18.2007 3:10pm