Final thoughts on oral argument

This is the eighth and final post in a series about the oral argument in Shelby County v. Holder.

As discussed in my last post, the legal standard in Shelby County v. Holder is an issue of some dispute. But it is something the justices essentially left untouched at oral argument. If the legal standard, which is still hotly disputed over the last two decades, is not one of the things the justices care to clarify at oral argument, then what is oral argument really doing?

As I suggested, first exploring the questions the justices did ask and then analogizing it to theater, oral argument is not, on the whole, serving its ostensible goal. It is not about clarifying or sharpening the issues in dispute. It may be that this happens occasionally, or that some justices use it for that reason. But if the argument in Shelby County is instructive, and if the justices aren't asking questions to clarify the written briefs about one of the most high-profile cases of the term involving one of the most important pieces of legislation in American history, then perhaps it's time to reconsider the utility of oral argument altogether.

If we truly believe that the Court needs an opportunity to ask the parties to clarify their positions, we should eschew oral argument altogether and instead have the Court draft questions for the parties to address in supplemental briefing. This happens occasionally, most notably when a case is argued, the justices realize there is a problem, and the Court schedules the case for reargument and requests supplemental briefing.

Instead of the theater of oral argument, it might be best for the Court to ask clarifying questions of the parties in writing, and then solicit written briefs in return. It would maximize the quality of the research and the answers; it would emphasize the most important part of litigation, written briefs; and it would remove the theatrical or publicity-oriented aspects of this process.

I admit it's not nearly as glamorous or publicly seductive. But if our quest is for the Court to reach the right result in the case with the best research and briefing possible, I am convinced that eliminating oral argument and providing a better alternative to clarifying the justices' questions would improve our judicial system.