The Washington Post reports this week that Supreme Court justices are asking more questions than ever at oral argument. If you’ve already lost interest in the story, then you haven’t missed anything. The justices’ conduct at oral argument says nothing about how they actually decide cases. By the time oral argument for a case even begins, the justices have already studied the record and the briefs in detail and discussed the issues with their smart (but often highly ideological) clerks. Each has usually made up his mind before he even asks his first question. Veteran court-watchers, wise to how the justices actually work, listen to the oral argument (if at all) for hints of what the justices might already be thinking. They know that oral arguments are really just for show.
Why then would the Post not only run a front page story on oral argument trends but assign three extra grunts to do the research? Perhaps it did so for the same reason that justices are asking more questions to begin with. As with much else, it all goes back to Ronald Reagan’s failed nomination in 1987 of Robert Bork. Ever since Senate Democrats defeated Bork on purely ideological grounds, nominations to the Court have been bitterly contested. Nomination battles follow a by-now familiar script: The death or retirement of a justice is bruited about. Senate staffers, advocacy and lobbying groups on both sides gird for battle. The opposing party hunts for fatal weaknesses in each possible nominee’s resume. Allies line up telegenic spokesmen, identify respected academics who might be willing to author an op-ed, and sketch out talking points.
At last the vacancy occurs and the President announces his nomination to fill it. The battle is joined. Each side tries to saturate the airwaves and the newspaper pages with its views. Opponents search furiously for that one talking point, which, if repeated ad nauseam, will turn public opinion against the nominee. The supporters, meanwhile, build up an appealing narrative in the nominee’s support.
By the time the Senate votes, the nominee cannot help but become a polarizing figure. Who can forget Sotomayor’s “wise Latina” remark? Alito’s membership in Concerned Alumni for Princeton? Kagan’s refusal to let the military recruit on campus? Trivial in themselves, these incidents have become partisan rallying cries. They proved (in many minds) that Sotomayor was an ethnic nationalist, Alito a mysogynist or Kagan an anti-military traitor. Needless to say, the more one side comes to loathe a nominee, the more he becomes a hero to the other.
At last the nominee survives the ordeal and assumes a seat on the Supreme Court. As justice, he has an official capacity to decide cases. As partisan leader, has an unofficial capacity to gratify supporters and disappoint enemies. To be sure, judicial ethics and standards of decorum prevent the justices from taking up the cudgels politically. But they still have oral argument. At oral argument, they can prove their mettle by making the wittiest remarks and asking the more incisive questions. After all (whether the justice acknowledges it consciously to himself or not), each has fans to cater to.
Fans of the justices identify with them emotionally no less than sports fans identify with their favorite teams. As sports fans’ appetite for information about their teams (and their opponents) can never be sated, so Supreme Court fans’ appetite for information about Court trivia can never be sated. Ideologues want to know: Is Kagan living up to her rookie promise? Is Thomas upholding the reputation of originalism? Is Sotomayor up to snuff? Is Scalia as nimble and caustic as ever? The Post’s recent article gives them just enough for them to draw their own conclusions, while leaving them hungry for more.
The justices, in short, are showing off for their publics and the Post is dutifully reporting on their performances. The sports pages and the national news pages are often one in the same.