The Role of Oral Argument
JOHN M. HARLAN II Justice, Supreme Court of the United States
I think that there is some tendency . . . to regard the oral argument as little more than a traditionally tolerated part of the appellate process. The view is widespread that when a court comes to the hard business of decision, it is the briefs, and not the oral argument, which count. I think that view is a greatly mistaken one. . . .
First of all, judges have different work habits. There are judges who listen better than they read and who are more receptive to the spoken word than the written word.
Secondly, the first impressions that a judge gets of a case are very tenacious. They frequently persist into the conference room. And those impressions are usually gained from the oral argument, if it is an effective job. While I was on the court of appeals, I kept a sort of informal scoreboard of the cases in which I sat, so as to match up the initial reactions which I had to the cases after the close of the oral argument with the final conclusions that I had reached when it came time to vote at the conferences on the decision of those cases. I was astonished to find during the year I sat on that court how frequently--in fact, more times than not--the views which I had at the end of the day's session jibed with the final views that I formed after the more careful study of the briefs which, under our system in the Second Circuit, came in the period between the closing of the arguments and the voting at the conference.
Thirdly, the decisional process in many courts places a special burden on the oral argument. I am giving away no secrets, I am sure, when I say that in one of the courts of appeals where I was assigned to sit temporarily the voting on the cases took place each day following the close of the arguments. In the Supreme Court, our practice, as is well known, has been to hold our conferences at the end of each week of arguments. They have been on Saturdays up until now, but under a more enlightened schedule they will