May It Please the Court: Questions About Policy at Oral Argument

Conlon, Cynthia K., Karaba, Julie M. | November 26, 2012

This Article examines the questions that Supreme Court Justices ask during oral argument. The authors content-coded questions asked in fifty-three cases argued during the October 2009, 2010, and 2011 terms—a total of 5,115 questions. They found that the Justices vary significantly in the extent to which they ask about different aspects of a case, including threshold issues, precedent, facts, external actors, legal argument, and policy. They also found that the Justices were more likely to ask policy-oriented questions in education cases than in constitutional cases that did not arise in a school setting. The authors included a case study of Camreta v. Greene to illustrate with specific examples each current Justice’s questioning style. The Study concludes that oral argument plays an important role in the Supreme Court’s decision-making process, giving the Justices the opportunity to ask questions that are of concern to them.