Supreme Court scholars and others -- including Chief Justice John Roberts Jr. -- have pointed to some statistical research about oral arguments that seems too simple to be accurate. Namely, if you want a good predictor of how a case will turn out, count up the questions from justices aimed at each side. Much more often than not, the party that gets the most questions loses.
"The hypothesis is strongly supported," said Lee Epstein, William Landes and Richard Posner in a law and economics paper recently published on SSRN and available here. It's not just a matter of more questions being needed to probe a weaker case, they concluded, but also a function of strategies by certain justices about the best way to persuade their colleagues to join their side.
So we took the transcript of the argument Wednesday in Citizens United v. Federal Election Commission to put it to that statistical test. Most who saw or listened to the 90-minute argument came away predicting that the government, which was defending key precedents that support bans on corporate and union expenditures in campaigns, would lose -- either broadly or narrowly. So what did the numbers say? National Law Journal intern Daniel Newhauser tackled the transcript, with help.
By our count, Theodore Olson and Floyd Abrams, the lawyers who challenged the precedents and the law, received 47 questions from the justices: 29 during Olson's main presentation, 10 for Abrams, and eight more for Olson during rebuttal. As for Solicitor General Elena Kagan and Seth Waxman, who were defending the precedents and the underlying statute, they got 56 questions from the Court: a whopping 48 for Kagan and eight for Waxman. Chief Justice John Roberts Jr. and Justice Antonin Scalia, in particular, asked numerous questions of Kagan; as for new Justice Sotomayor, she only asked questions of Olson and Abrams, remaining silent while Kagan and Waxman spoke.
So, in the question tally, the side that many predict will lose did in fact get the most questions, but not by that much: 56 as opposed to 47. Time will tell how accurate the difference was this time in predicting who won and lost.
Note: it may seem like a straightforward and easy task to count up the justices' questions, but it is complicated by interruptions that divide questions in two, as well as by repetitions of and elaborations on questions. And not every comment from a justice is a question. We did not count repetitions or elaborations unless they raised new questions, and we did not count comments from justices that did not seem aimed at eliciting responses. Others could reach a different total.
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