Oral Arguments Before the Supreme Court: An Empirical Approach

204 Pages·2008·0.97 MB·English

by  Lawrence Wrightsman

Oral Arguments before the Supreme Court
American Psychology-Law Society Series
Series Editor
Ronald Roesch
Editorial Board
Gail S. Goodman
Thomas Grisso
Craig Haney
Kirk Heilbrun
John Monahan
Marlene Moretti
Edward P. Mulvey
J. Don Read
N. Dickon Reppucci
Gary L. Wells
Lawrence S. Wrightsman
Patricia A. Zapf
Books in the Series
Trial Consulting
Amy J. Posey and Lawrence S. Wrightsman
Death by Design: Capital Punishment as a Social Psychological System
Craig Haney
Psychological Injuries: Forensic Assessment, Treatment, and Law
William J. Koch, Kevin S. Douglas, Tonia L. Nicholls, and Melanie L. O’Neill
Emergency Department Treatment of the Psychiatric Patient: Policy Issues and
Legal Requirements
Susan Stefan
The Psychology of the Supreme Court
Lawrence S. Wrightsman
Proving the Unprovable
Christopher Slobogin
Adolescents, Media, and the Law
Roger J.R. Levesque
Oral Arguments before the Supreme Court: An Empirical Approach
Lawrence S. Wrightsman
Oral Arguments before
the Supreme Court
An Empirical Approach
Lawrence S. Wrightsman
3
2008
3
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Library of Congress Cataloging-in-Publication Data
Wrightsman, Lawrence S.
Oral arguments before the supreme court :
an empirical approach / Lawrence S. Wrightsman.
p. cm.—(American Psychology-Law Society series)
Includes bibliographical references and index.
ISBN 978-0-19-536862-8
1. United States. Supreme Court—Decision making. 2. Oral pleading—United States.
3. Forensic orations—United States. I. Title.
KF8748.W752 2008
347.73'72—dc22 2008004248
9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
To my son,
Allan Jefferson Wrightsman
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Series Foreword
This book series is sponsored by the American Psychology-Law Society
(APLS). The APLS is an interdisciplinary organization devoted to scholarship,
practice, and public service in psychology and law. Its goals include advanc-
ing the contributions of psychology to the understanding of law and legal
institutions through basic and applied research; promoting the education of
psychologists in matters of law and the education of legal personnel in matters
of psychology; and informing the psychological and legal communities and
the general public of current research, educational, and service activities in the
fi eld of psychology and law. APLS membership includes psychologists from
the academic research and clinical practice communities as well as members
of the legal community. Research and practice are represented in both the
civil and criminal legal arenas. The APLS has chosen Oxford University Press
as a strategic partner in publishing because of its commitment to scholarship,
quality, and the international dissemination of ideas. These strengths will help
the APLS reach our goal of educating the psychology and legal professions as
well as the general public about important developments in psychology and
law. The focus of the book series refl ects the diversity of the fi eld of psychol-
ogy and law, as we publish books on a broad range of topics.
This is the second book on the Supreme Court that Professor Lawrence
Wrightsman has contributed to this series. In The Psychology of the Supreme
Court, Wrightsman provided readers with a compelling and thoughtful analy-
sis of how the nine Supreme Court justices behave both individually and as a
group in reaching decisions that can affect all Americans. In Oral Arguments
before the Supreme Court: An Empirical Approach, he continues his focus on
vii
viii Series Foreword
the Supreme Court but turns his attention to the role that oral arguments play
in Supreme Court decisions. He traces the history of oral arguments from the
time of John Jay and the beginning of the Supreme Court to the present-day
Roberts Court. Challenging the notion that oral arguments play an insignifi -
cant role in decisions, Wrightsman provides a careful and detailed analysis of
the transcripts of oral arguments and shows that oral arguments are central to
the decision-making process. Suggesting that values and attitudes of the jus-
tices do matter, Wrightsman fi nds, for example, that justices tend to ask more
questions of the losing side in ideological cases than in cases in which ideology
is not a factor. His analysis also reveals that Justice Roberts has created a more
relaxed atmosphere for oral arguments, one that appears more receptive to
advocates than that of his predecessor, Justice Rehnquist.
In Oral Arguments before the Supreme Court, Wrightsman continues the
study of the personality of justices that he began in his previous book. In a
fascinating application of the Five Factor theory of personality, he uses his
analysis of oral arguments and other information to identify justices who
each exemplify one of the Big Five: Justice Scalia (Extraversion), Justice Breyer
(Agreeableness), Justice Souter (Conscientiousness), Justice Kennedy (Open-
ness to Experience), and Justice Thomas (Negative Affectivity). His discussion
of the basis for his characterizations of the justices provides insight into their
approach to cases and the psychology of their decisions.
In the concluding chapter, Wrightsman presents psychological research
and his perspective on an issue that may become a pressing one before the
Court—whether to allow televised oral arguments. Congress is currently con-
sidering a bill that would permit the televising of oral arguments, a move that
is likely not supported by the Supreme Court justices.
Professor Wrightsman has once again provided an insightful book about
the Supreme Court and how nine individuals reach decisions in often complex
and controversial, ideological cases. This book is of value to social scientists, as
it provides a model for understanding the dynamics of judicial decision mak-
ing from an empirical perspective. It will also be of interest to advocates who
may appear before the Supreme Court, as it will provide them with incisive
pointers on what types of questions to expect from the various justices and,
most important, how to avoid making the classic mistakes that advocates have
made in the past.
Ronald Roesch
Series Editor
Preface
Of the three branches of our federal government, the judicial branch is argu-
ably the most secret. For example, the justices of the Supreme Court decide
in secret which cases to resolve, they meet in secret to take a preliminary vote,
the opinions are drafted in secret, and not until their decision is announced is
the public privy to their actions. But one step in the decision-making process
is open to the public: the oral arguments. Despite its transparency, the process
of holding oral arguments has been challenged. Some critics—and even a cur-
rent justice—believe that the exercise is useless in the overall process of deci-
sion making, as justices’ minds have been made up before this step.
In this book, I challenge that conclusion. The viewpoint of this book is
that oral arguments are a signifi cant part of the Supreme Court’s decision-
making process. Justices have an opportunity to test the limits of claims made
by advocates in their briefs; furthermore, the argument procedure provides an
opportunity for justices to sense the strength of feelings held by other justices
and even to try to persuade their colleagues as they question the advocates.
The requisite nature of oral arguments was illustrated in a case that came be-
fore the Court on October 19, 2007, Medellin v. Texas. It was a case of major
signifi cance as it was a death-penalty case. But even more, it asked whether
the President of the United States, on his own, could order a state court to
follow a decision by the International Court of Justice that foreign nationals
on death row in the United States—in this case, one Jose Medellin—can ob-
tain counsel from their native countries. The comments and questions from
the justices were so frequent and heated that Justice John Paul Stevens, ever
gracious on the bench, told the Solicitor General of Texas that he would like
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