Supreme Court Justice Clarence Thomas made big news today by revealing the obvious: Oral arguments aren't that big of a deal—especially to Thomas, who has gone more than six years without asking a single question at a hearing. Referring to the discourse between justices and lawyers, Thomas told a University of Kentucky audience, "I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.” He noted that outside of the hour-long oral arguments, the nine justices “have a lifetime to go back in chambers and to argue with each other.” The remarks were enough to excite the Associated Press, USA Today, The Washington Post, Politico and other publications but if you think about it, his words were merely common sense.
As legal experts have noted, ahead of oral arguments, the justices scan through reams of briefs that discuss every type of argument you could imagine. It's not as if the justices are exposed to new ideas when they're discussing hugely contentious issues like health care reform. "The worst-kept secret in appellate litigation is that oral arguments don’t matter that much," wrote Newsweek's Ben Jacobs last month. "Most of the decision-making process centers around past court precedent and the briefs submitted by the parties and amici curiae (or 'friends of the court')."
The Washington Post's Ezra Klein found a similar answer when he quizzed legal experts on it last month. "There is, after all, something slightly odd about the idea that the members of the Court are genuinely open to being moved by today's discussion over the precise nature of the individual mandate,'" he wrote. "Why would a few hours of theatrical argument be key to their decision-making process?" He spoke with The New Yorker's Supreme Court reporter Jeffrey Toobin who emphasized that, in the case of big issues like health care, oral arguments have significantly less impact. "In my experience, the higher profile the case, the less oral arguments matter, because the Justices have strong and longstanding views about major constitutional issues."
Still, even though health care oral arguments may not have been that important to the justices, it doesn't mean they aren't consequential to the public at large. That's why last month's charade got so much attention: The arguments weren't influencing the justices, necessarily, but they gave the public a window into the disposition of the members of the court, which ended up revealing that yes, five justices could conceivably rule against the individual mandate.