Sterngard Friegen wrote: ↑
Tue Sep 17, 2019 2:41 pm
I've always thought that most appellate court argument is just theater. The judges usually have read the papers, have bench briefs from their clerks and know where they want to go. In my view it's rare to turn around an appellate judge who has made up her mind, and most have before oral argument.
There are some exceptions, but I think they are far and few.
Exactly: few and far between.
Before there's argument, the shipping clerks have written their memos, and these memos have been circulated and discussed. So before the proverbial gavel first falls, there's already an agreement by at least a majority of the bench on how the cases is going to go. Oh, sure, sometimes they'll "fix it in post," i.e., preliminarily agree on the result, and post-argument hash out the exact path to get that result.
It is rare (unless you are Justice Kennedy) for a conflicted judge to be swayed by oral argument. Good argument may lead to a doubting judge ordering up some more research, but it rarely moves the needle. And, worse case (for the shipping clerks), it spawns a separate opinion -- to expound upon some point not critical to the result.
I recall a case in which counsel made a surprise oral motion at oral argument. And instead of "taking the matter under advisement," the judges conferred and then granted the motion at oral argument. Counsel was savvy enough to deduce that he was winning, and pressed his luck; it paid off. (It was a bail motion in a criminal case.)
Of course, some courts have the luxury of deciding just on the briefs; they can cancel argument because they know it'll be a waste.