By Donald Scarinci | December 20th, 2012 - 11:50am
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The U.S. Supreme Court is not expected to issue rulings in the same-sex marriage cases until June 2013. However, a new study suggests that how the justices act during oral arguments could tip off how the justices will ultimately rule.

Research conducted at the University of Arkansas found that the Supreme Court justices are more likely to interrupt and question lawyers for the side with which they disagree. The Supreme Court study examined 11 cases from the 2009 and 2010 terms and compared the voting records of eight justices with the number of interruptions they made.

In total, the researchers observed approximately 140 interruptions per case. However, during oral arguments for controversial cases such as Citizen’s United, the number of interruptions spike to 178. The interruptions also often correlated with the justices’ final votes on the issue, with justices more inclined to interrupt counsel of the side they will vote against.

The researchers also detected differenced among the justices. For instance, the pattern was less visible when examining the interruptions of Justice Antonin Scalia. He was the most vocal during the cases studied and questioned both sides with almost equal frequency. Meanwhile, Chief Justice John Roberts’ interruptions more clearly revealed his take on the issue. "On every single case, he exhibited the hypothesized behavior indicating that his interruptions, as well as his statements and questioning, were highly predictive of his intended vote," the study notes.

 “The role of oral argument isn’t necessarily what we think it is. It’s really an opportunity for the justices to get the other justices on their side,” said political science professor William Schreckhise, who worked on the study. “This shows that justices come to the bench in individual cases with a pre-set idea of what they think is the right answer and would like to convince the other justices of what they think.”

Although the oral arguments will not be televised, the Supreme Court does make audio recordings and transcripts available to the public. The transcripts of oral arguments are provided to the public for free on the Supreme Court website. They are generally available on the same day an argument is heard by the Court. Since 2010, audio recordings have also been made available on the website. The audio recordings are posted on Fridays at the end of each argument week.

Therefore, those who give credence to the study can listen to the recordings of the same-sex marriage oral arguments and may be the first to know how the Court will decide the historic cases.

 

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

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