Abstract

Excerpted From: Chris Chambers Goodman, Colorblind and Color Mute: Words Unspoken in U.S. Supreme Court Oral Arguments, 30 Washington and Lee Journal of Civil Rights and Social Justice 169 (Spring, 2024) (201 Footnotes) (Full Document)

Many people feel awkward when speaking about racial issues or even just identifying the race of an individual when trying to provide a description. When they try to make a joke, of sorts, as we see Justice Alito attempt above, the awkwardness only increases. There are many reasons why people have a difficult time talking about race and having cross-racial conversations. This article considers the words used in oral arguments at the United States Supreme Court through the lens of racial anxiety and describes how different manifestations of anxiety in different groups can impede cross-cultural communications.

First, some historical background on oral arguments. The early Supreme Court did not place any time limits on oral arguments, perhaps because there were no written briefs required at that time, and the justices needed the lawyers to explain the facts and applicable law. Argument sessions lasted multiple hours and could be heard over the course of several days or even a week, with the justices doing much more listening than asking questions. Printed briefs first became a requirement in 1829. Those written submissions provided the justices with the details of case, and thus they could ask more informed and useful questions.

The Court imposed time limits in 1871 of two hours per side, and “began questioning advocates more aggressively to get straight to the essentials.” In 1918, the Court further limited the time for advocates to 60 minutes per side, and in 1970 the Court restricted time to the current limitation of 30 minutes per side.

Currently, the United States Supreme Court holds oral arguments in approximately 70 to 80 cases per year, and the arguments are typically scheduled for 60 minutes, though some cases receive additional time when a party seeks it. Nonparties who have filed amicus briefs may also see to argue on the side of the party with that party's consent. If after reviewing the briefs, fewer than four justices believe the case warrants oral argument, then they will not schedule any.

There are several primary purposes for oral argument. One important purpose, both for the Justices and for the litigants, is clarification, of the record, of the substance or scope of the claims, as well as their logic and practical impacts. Experienced Supreme Court litigators also consider tactics, which are also important to both the justices and the litigants. These tactics include simplifying information in a way that can help motivate the justices to decide the case in a way favorable to one's clients, as well as providing rebuttals to counter- arguments that justices leaning in favor of one's clients can use in conference with their colleagues. An overarching purpose for litigants, of course, is to win the case, and persuading the justices depends upon demonstrating how “counsel's legal theory is beneficial to the public, administratively feasible, and consistent with the teaching of past experience.”

Some limited research confirms that “what transpires at oral arguments affects justices' final votes on the merits,” and “these elite decision makers can be influenced by those presenting arguments to them.” This study also established that the justices are seeking information that can “help them reach policy outcomes consistent with their preferences,” and that oral arguments “matter to the decision in a case.”

Another purpose of oral argument, at least for some justices, is to be able to demonstrate how their opinions are following precedent and that their decisions are consistent with past established law. More recently, establishing that the decision is not motivated by politics or pre-conceived notions and ideas, but rather is based on the facts as presented by the litigants and the law as reasonably interpreted has become important to avoid further erosion in perceptions of the legitimacy of the Court.

There is also a public purpose to oral arguments, particularly in the aftermath of the COVID-19 crisis and the telephonic oral arguments that expanded real-time access to the general public in an accessible way. Now, the television channel C-SPAN carries the audio of oral arguments in cases of general interest, with photos of each speaker almost like video-mute in a Zoom meeting.

Recognizing that the public is listening may also have an impact on the justice's questions, hypotheticals, and attempts at jokes. Television news commentators sometimes play excerpts of the oral argument to illustrate political points. Racial anxiety and its ramifications (discussed in Part III, infra), may also be exacerbated as the justices know that others are listening, and still others (as has been possible since the 1950s) can listen to the recordings or review the transcripts over and over again in the future. The general public may have their own impressions of the justices, and the merits or faults with a particular case after hearing these excerpts or listening to entire arguments.

Part II evaluates the transcripts from Supreme Court cases that involved racial, ethnic, tribal or national origin (hereinafter “RETNO”) discrimination. It briefly describes the research methodology, case selection process, and how the search terms were generated. It then explains the preliminary findings on the infrequency of the use of these terms in most cases, and particularly by the justices themselves. After explaining the concept of “racial anxiety, part three explores how racial anxiety impacts communications, and alters or amends the stories that we tell, and the ways in which we tell them. Part IV concludes the article, highlighting the emerging trend with the presence of three justices of color on the Court simultaneously, and providing a roadmap for the next steps in this ongoing research project. The next installment involves gathering additional evidence to consider questions about the broader ramifications of racial anxiety for attorneys as well as the justices conducting oral arguments.

[. . .]

This research project has blossomed into several additional areas of inquiry that this author will be diligently pursuing. One project is to analyze earlier decisions, to consider cases immediately before and after the first justice of color Thurgood Marshall joined the Court. The goal would be to analyze how the use and frequency of racial terms has changed over time--from the early Civil Rights movement, to the substitution of Justice Thomas for Justice Marshall as the sole person of color on the bench, to the addition of Justice Sotomayor, and of Justice Jackson, such that for the first time in history, three justices of color sit on the U.S. Supreme Court bench.

Another project is gathering data to evaluate the race and ethnicity of attorneys presenting during the oral arguments, to provide a deeper analysis of the impact of cross-racial communications in oral arguments. For instance, while most of the attorneys are white and male, in the past decade, no Black attorney has argued on behalf of the government in front of the Court.

A third project focuses on the individual justices and their clerks. One part would involve identifying and analyzing the demographics of U.S. Supreme Court judicial clerks over the years, to see if there is any correlation with the justices' use or avoidance of racial terms in oral arguments, and in their eventual opinions. The next part is to trace any changes in the individual justices' use of these RETNO terms longitudinally, over the course of their terms on the Court, and to qualitatively analyze their colloquies with counsel when they do use racial terms during oral arguments.

After compiling this additional data, the next article in this series will apply notions of racial anxiety to further understanding about how the dynamics of cross-racial conversations, stock stories, and storytelling communications inform and influence the Court's arguments and eventual decisions on cases that implicate race, ethnicity, tribal, and national origin issues. The next phase in the research will continue to analyze the extent to which the minimal use of racial terms in U.S. Supreme Court oral arguments impacts justice.

Professor of Law, Pepperdine Caruso School of Law, Member, American Law Institute. A.B. cum laude, Harvard College. J.D. Stanford Law School.