Can Justices Predict Case Outcomes at Oral Arguments?

Abstract

Chapter 3 demonstrates oral arguments are often a conversation among justices where they learn about colleagues' preferences by listening to questions and comments made by each other. Further, what justices learn from these conversations influences the bargaining and accommodation that takes place as they hammer out their final legal and policy decisions during the opinion writing process. While this suggests the overall utility of oral arguments in the formation and building of coalitions at the Court, it does not directly address a closely related question: whether justices can use oral arguments to actually build a road map of the likely coalitions that will emerge in a case.

Here, we continue examining the Burger Court era, and Justice Blackmun specifically, who kept explicit notes about the coalitions he expected to emerge in many of the cases he heard. Later in the chapter we describe in more detail Blackmun's predictions, though you may recall Chapter 3 offered a glimpse of his fortune telling success when he correctly predicted all nine votes in Patterson v. McClean Credit Union. For now, we reiterate the general logic of why predicting coalitions is important.

First, demonstrating justices systematically predict their colleagues' votes and the coalitions that ensue from these votes represents prima facie evidence that the coalition formation process begins before the post-oral argument conference discussion between justices. More to the point, assuming the predictions are accurate above what a justice could predict by chance, it suggests the seeds for winning coalitions are often sowed during oral argument, which is our fundamental theme in this book. Second, and perhaps more importantly, as a practical matter successful predictions enable a justice to build a road map of the contours of a case, providing him with knowledge about those issues on which his colleagues will base their decision and what legal arguments may or may not be viable. By way of comparison, the Court uses oral argument "to get a better sense of the outer limits of an advocate's position" (Frederick 2003, 6), which is why justices ask hypothetical questions during these proceedings (Frederick 2003). The justices then use their ability to think forward as they determine how to set legal policy as close to their preferred position as possible (Murphy 1964; Epstein and Knight 1998).

Interestingly, when the Court hears oral argument in a case, the final coalition is usually several months (and sometimes more than a year) from coalescing. Despite this time span, and with not one word of the majority draft written, we argue it is possible to discern the justices' probable voting patterns based on conditions related to their ideological beliefs and behavior during oral arguments. We support this conjecture with evidence from Blackmun, who predicted coalitions in a significant number of cases in which he was involved. To do so we take several steps. First, we provide examples from several Supreme Court cases to demonstrate how he predicted votes and outcomes.

Then, in the second half of the chapter, we test whether his behavior was more systematic than anecdotal by examining two questions: (1) under what conditions did Blackmun attempt to predict the vote of one of his colleagues; and (2) what factors explain whether Blackmun's vote predictions were accurate?