Asking Versus Telling: The Supreme Court’s Strategic Use of Questions and Statements During Oral Arguments

Abstract

Supreme Court oral arguments are often characterized as the Court rapidly firing questions at attorneys who struggle to keep up; however, nearly half of the Court’s utterances come not as questions but as statements. I ask whether patterns of questioning and commenting behavior during oral arguments can predict case outcomes and justice votes. To answer this question, I develop a theory of strategic communication that accounts for the differential ways justices—and other strategic actors—use queries and comments during arguments. Using transcripts from 1981 to 2019, I code for use of questions and statements, finding the two theoretically and empirically distinct: where questions increase a party’s chances of winning, statements increase their chance of losing.