As with records and briefs, reviewing the oral argument transcripts for cases heard before the Supreme Court can help a researcher explore and understand the arguments of each party, how the Court responded to those arguments, and the possible reasons why one party prevailed over the other. As well, researchers may want to examine the dialogue between the justices and the attorneys in an individual case to gain insight into the issues presented in the case.
Understanding Supreme Court Oral Arguments
Before 1849, oral arguments before the Court were unrestricted. Often, the arguments continued for days and drew a large crowd. However, by the mid-1800s the Court's increasing caseload made long arguments impossible. Thus, in 1849 the Court adopted a rule, published at the beginning of 48 U.S. (7 Howard), that limited oral argument to two hours per side. This rule remained in effect until 1925 when the time was reduced to one hour per side. See 266 U.S. 673. In 1970, the time limit was reduced to the current practice of one half-hour per side when the court revised the oral argument rule at 398 U.S. 1058-59.
Perhaps the reduction in time for oral argument is best explained by Justice Charles Evans Hughes, who wrote in 1928:
The progress of civilization is but little reflected in the processes of argumentation and a vast amount of time is unavoidably wasted in the Supreme Court in listening to futile discussion; this has the effect of reducing the time for cases which should be fully presented.
The Supreme Court of the United States: Its Foundation, Methods, and Achievements 61 (1928).
Today, there are several rules relevant to oral argument at the Supreme Court:
- Rule 4, which sets the general timing of open sessions of the Court.
- Rule 6, setting the rule for argument pro hac vice.
- Rule 27, governing the calendar of cases to be argued before the Court.
- Rule 28, specifying details of oral argument procedure, including the 30 minute time limitation.
The oral argument transcript includes the docket number, the date and time of the argument, the appearances, the attorneys arguing on behalf of the parties and any attorneys appearing as amicus curiae (see Rule 28(7)) on behalf of petitioner or respondent, the Chief Justice's introduction of the argument, followed by the arguments of each side. If the petitioner reserves time for rebuttal, this is requested at the end of their initial argument.
The attorneys appearing are identified by name in the transcript. Now, beginning with the October 2004 term, justices are identified by name when posing a question. Traditionally, when a justice asked a question it was simply labeled "Question" in the transcript. When looking at transcripts from prior terms, readers cannot identify the justice unless the attorney's response included the justice's name. Researchers unfamiliar with Supreme Court procedure may be surprised to find that the justices do not hesitate to jump in with questions.
For more information about oral argument, see the Supreme Court's Visitor's Guide to Oral Argument.