At Supreme Court: Open Mouth Means Closed Mind

FAYETTEVILLE, Ark. – In the Supreme Court of the United States, oral argument does matter — but not in the conventional sense, University of Arkansas research shows. Instead of oral argument serving as a means for parties to convince justices of their position, research shows that justices use it to convince their fellow justices of their own views of the case under consideration.

In “Of Closed Minds and Open Mouths: Indicators of Supreme Court Justice Vote during the 2009 and 2010 Sessions,” Christopher Kimmel, an Honors College undergraduate, and political science professors Patrick Stewart and William Schreckhise found that justices more readily interrupt and question counsel for the side with which they disagree.

“The role of oral argument isn’t necessarily what we think it is. It’s really an opportunity for the justices to get the other justices on their side,” said Schreckhise. “This shows that justices come to the bench in individual cases with a pre-set idea of what they think is the right answer and would like to convince the other justices of what they think.”

In their research, Stewart, Schreckhise and Kimmel examined whom the justices interrupted during oral argument in 11 significant and highly contested cases before the Supreme Court during its 2009 and 2010 terms. The authors then linked the interruptions to the individual justices’ votes on the outcome of the case. They found justices are most likely to interrupt counsel of the side they will vote against. This indicates, the team wrote, that the interruptions are a way for the justices to assert control over the argument being made and the lawyer making the argument. More specifically, justices appeared to use interruptions not to ask questions that help them form their opinions about the case, but to convince the other justices to think the way they want them to think.

The research provides a unique insight into a court that is largely shrouded in secrecy. When the justices discuss cases in the chief justice’s conference room, no outsiders are allowed, and as a result, how the justices interact when discussing a case is largely unknown. By analyzing the audio recordings of oral arguments, these researchers provide a better understanding of how this court truly operates.

“The title of the article says it best. When you open your mouth, your mind is usually closed. This is especially true when you are talking about justices of the Supreme Court of the United States,” Stewart said.

Kimmel, who has since graduated, was an Honors College student and political science major. Stewart is an assistant professor and Schreckhise is an associate professor, both in the department of political science in the J. William Fulbright College of Arts and Sciences. Their article appears in the July 2012 edition of The Forum: A Journal of Applied Research in Contemporary Politics.