By Dr. Ken Broda-Bahm:
The Supreme Court recently heard oral arguments on the question of marriage equality, and specifically whether state bans on same sex marriage are unconstitutional, and whether marriages that are legal in one state need to be recognized in another. As is typical, the focus is on Justice Kennedy as the traditional swing vote, and true to form, Justice Kennedy gave both sides something to ponder. For marriage equality opponents there was, “This definition [of marriage as between a man and a woman] has been with us for millennia. And it’s very difficult for the Court to say, ‘oh, we know better.‘” Then, a bit later, for marriage equality proponents, there was a key moment after John Bursch, the Special Assistant Attorney General for Michigan, argued that the purpose of marriage was simply to regulate procreation and not to bestow dignity on anyone in particular. “I don’t understand this as not dignity-bestowing,” Kennedy quickly piped in, “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage…I think many states would be surprised, with reference to traditional marriages, that they are not enhancing the dignity of both the parties. I’m puzzled by that.” That contrast fed the speculation on what Kennedy will do when the decisions come down in late June.
But it is also wise to not read too much into the questions, and to remember that, when questioning, judges are often doing more than just seeking information or just sharing their views. Dealing with judges and many others in law means getting past the assumption that the only purpose of a question is to get an answer. Sometimes it is, but often there are a variety of other purposes. A judge’s questioning strategy is definitely front and center in U.S. Supreme Court oral arguments, but an ability to diagnose and adapt to questions applies in other legal settings, including witness cross examination and depositions, as well. In this post, I will draw from the Court’s oral arguments on the constitutionality of state bans on same sex marriage (the Obergefell cases) in order to separate and discuss the various question purposes on display.
I am going to refer to judicial participation as “questions” knowing that often they really are statements with an express or implied “isn’t that right?” or “what do you say to that?” tacked onto the end. Read in the context of each Justice’s attempts to argue, to test, and to begin fleshing out their own opinion, the questions are not just attempts to gain information. Instead, they serve a variety of purposes.
Sometimes the Question is a Counter-Argument
Asking a question is a chance to stump the advocate, or to make one of your own points clear to the other Justices. For example, after the Plaintiffs’ attorney Mary Bonauto briefly introduced her argument by noting her clients’ desire to “join in” the government institution of marriage, Chief Justice Roberts countered:
“You say ‘join in the institution [of marriage].’ The argument on the other side is that [you are] seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.”
How counsel responds in this case isn’t the point. The point is t0 get the judge’s own argument — in this case that petitioners are seeking a redefinition and not just equal rights — on the record. The response to this form of question is to treat it as an argument: You are not just providing information, you are in a debate. So respond with your own argument.
Sometimes the Question is a Demonstration
In one particular form of counter-argument, a question can be designed, not just to refute, but to make a flaw more plain. For example, in order to show that the reasons against polygamy (e.g., the traditional appeals that ‘marriage has never meant that’) are also the same reasons the states have for legislating against same-sex marriage, Justice Alito provides an example of a quartet seeking legal recognition in marriage:
“These are four people, two men and two women…and let’s say they’re all consenting adults, highly educated. They’re all lawyers. (laughter). What would be the ground under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?”
The response to the demonstration-oriented question is to answer, but with an eye toward avoiding what your antagonist is trying to demonstrate. In this case, for example, Ms. Bonauto appealed, not to tradition, but to practicality by arguing that there are many logistical issues — including paternity, medical decisions, and divorce — that would be much more complex if marriages extended beyond two parties, and those complications give states a legitimate interest in prohibiting those unions.
Sometimes the Question is a Test
The goal of a question, even at SCOTUS level, isn’t always to attack. In some cases, the Judge just wants help in fleshing out his own thinking. Take, for example, the first question out of the gate, from Justice Ginsberg:
“What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relationships?“
In other cases, a judge might be trying something on that they don’t necessarily agree with, just to see if counsel’s response might aid their own thinking. That testing function may be what Justice Kennedy was after in asking about traditional definition of marriage having been accepted for millennia. In responding to the test question, the advocate is suggesting a response for judges to use in bolstering their own opinion.
Sometimes the Question is Rope
When judges are friendly to an advocate’s side, they will sometimes throw that advocate a rope via a timely question. For example, when Justice Scalia is going after the Plaintiffs’ attorney with the argument that ministers will be forced to officiate at gay weddings, Justice Sottomayor kindly tossed Ms. Bonauto a lifeline:
“Counselor, there have been anti-discrimination laws in various states; correct? … And in any of those states, have ministers been forced to do gay marriages.“
Bonauto’s answer, “Of course not, Your Honor” reminds us that the purpose of that question is just to suggest a different possible answer. This kind of friendly questioning occurs so often in Supreme Court oral arguments that the transcript can take on the appearance of the Justices mostly arguing with one another, using the advocates as intermediaries. The advocates, for their part, just need to recognize when it is a rope and reach for it.
And Sometimes the Question is Just a Question
As Sigmund Freud said about the cigar, sometimes a question is just a question: Judges ask when they genuinely don’t know the answer. It may not be surprising that at the SCOTUS level, this kind of question is relatively rare: What with the briefs and the clerks, the Justices generally know what they need to know by the time a case reaches oral arguments. Indeed, as I searched the Obergefell transcript, I could not find a single example where a question seemed to have the main purpose of simply getting an answer.
That basic but obvious function of a question is undoubtedly more common in other judicial settings. When the judge doesn’t know, she should ask, and the advocate should put the persuasion on pause and just give an immediate, straight, and informative answer.
Advocacy, particularly before judges, is a complicated setting. For that reason, there are probably other varieties and nuances to the questions. Attorneys shouldn’t skip the diagnosis step. Before diving into a response, you should ask, “Is it an argument, a demonstration, a test, a rope…. or a question?”
Other Posts on Judicial Persuasion:
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