Key to Supreme Court Victory: Generate Fewer Questions
A new study of 2,000 oral arguments in the U.S. Supreme Court has found that the relative number of questions posed by the justices is a good predictor of which side will win.
The study found that if the litigant seeking reversal gets 50 more questions than the opponent, the chance of victory is only 39 percent, compared to a 64 percent likelihood of reversal when both sides get the same number of questions, the New York Times reports. A side getting 94 more questions than the other has only an 18 percent likelihood of winning.
University of Minnesota law and political science professor Timothy Johnson is one of the authors. “The old adage that you should keep your head down may be the way to go,” he told the Times. “The advocate who tries to throw in the kitchen sink and try every argument in the world may be heading for trouble.”
Johnson and two colleagues are working on an even more comprehensive study that considers the effect when justices ask questions using words deemed pleasant—words such as “approve,” “confidence” and “guidance”—and words considered unpleasant—such as “abusing,” “failed” and “hostile,” the story says.
Justices are weighing in at “double the loquaciousness rate in the mid-1980s,” the Times says, and their increased use of unpleasant words is outpacing that of pleasant words, the study found. The side that is subject to more unpleasant words is also more likely to lose.
“Justices focus more of their attention on words that are more likely to tear down an argument with which they disagree,” the study said, “than to help the side they hope will win.”
