Courts frequently rely on legislative history, including statements made by particular legislators on the floor to help explain legislation. What if lower courts considered statements made during oral arguments and statements read from the bench during the “hand-down” of opinions as persuasive value to explicate an ambiguous opinion.

The arguments counsel makes during oral arguments are essentially meaningless, and they do not persuade Justices.  What actually matters more, and what Court watchers closely scrutinize, are the questions and comments the Justices ask. This sheds light on where the Court may be going. Why not look to these questions to help elucidate an ambiguous opinion?

In light of the fact that legislative history is considered by the courts in spite of Article I section 7, the nebulous nature of Article III and the “judicial” power should welcome any additional insight oral comments might add to interpreting opinions.

While Article 1, Section 7 requires Bicameralism and Presentment to make a law, there is no requirement in Article III that the Court announce its judgment in a written opinion. There is no requirement that the Justices even join in an opinion. This was a tradition started by CJ Marshall. Why can’t stare decisis consider comments made orally. Shouldn’t these comments be woven into the tapestry to help reveal the meaning?

In fact, I contend that there is a stronger argument for courts to rely on oral arguments than to rely on legislative history. When relying on statements made by legislatures, there are significant attribution problems when attributing meaning to 100 Senators or 435 Representatives. I have written about Professor Eskridge’s theories on attribution here in a forthcoming article in the George Mason Civil Rights Law Journal. With the Supreme Court, there are only 9 justices. It is much easier to tie the questions or comments a Justice makes with his or her subsequent opinion.

Further, while many legislative statements are made in committee, when only a fraction of the Congress or Senate is present, on the Court, all Nine Justices are present at all times whenever comments are made.

Now oral comments would only be entitled to a modicum of persuasive value, as they were not voted on by the whole of the Court. However, the same limitation should hold true for legislative history, which is similarly not voted on by a majority of the legislature.

I’ve argued that legislators who know their legislative history will be looked at have an incentive to grandstand. Now, if the justices knew their oral comments which do not require majority vote to become law, would the Justices be more loquacious on the bench?  Perhaps opposition to cameras would diminish.