Adam Liptak, the NY Times Supreme Court maven, brings us a dispatch in today’s Times (http://www.nytimes.com/2014/02/11/us/kagan-says-her-path-to-supreme-court-was-made-smoother-by-ginsburg.html?src=me&_r=0) that Justice Ruth Bader Ginsburg has come out as the third — count ’em, third — Supreme Court Justice to caution the Great Unwashed (at least the readers of the Times) that oral arguments before the Supreme Court (and the Justices’ reaction to them) are not necessarily a reliable indication of the outcome. Quoth her Lordship: “The bulk of the court’s work, is based on written submissions and private discussion, reflection and writing.”
Justice Ginsburg thus joins Justices Thomas and Kagan in publicly endorsing that conclusion.
Moral: Undue reliance on what one hears in oral arguments may leave the listeners with an inaccurate impression of the imminent outcome.
Based on a half century of appellate practice, we agree. True enough, some oral arguments can be so lopsided that there is no doubt as to outcome (we offer the oral argument in Del Monte Dunes as a case in point).