Liberals Won’t Beat the Supreme Court With Legal Arguments Alone

U.S. Solicitor General Elizabeth Prelogar has an incredibly difficult job. Every day, it falls to her to prepare the best possible legal arguments in front of a 6–3 conservative Supreme Court on behalf of a Democratic administration. Truly, this is not for the weak of heart. From abortion rights to gun control to environmental regulations, Prelogar has expertly argued for liberal priorities before the likes of Samuel Alito, Clarence Thomas, and Neil Gorsuch.

She’s earned no small share of plaudits for her trouble. Liberal legal commentators are enamored with her performances, rightly highlighting her strong arguments, impeccable preparedness, and constant poise in the face of what are often withering questions from the conservatives. Despite her best efforts, however, Prelogar has lost the majority of the cases she has argued—seeing Roe v. Wade, the ban on bump stocks, clean air and water regulations, and more overturned in the last several years.

How is it that someone many call the best oral advocate they have ever seen keeps losing? To anyone who has even casually followed the courts, the simple answer is that the deck is stacked against her. With six Republican justices on a court of nine, of course a Democratic administration is at a disadvantage. But it’s not just the numbers. The naked partisanship of the current Supreme Court—which has developed a reputation for capriciously discarding precedent and inventing novel legal theories out of thin air—has led to historic lows in public confidence in the court’s ability to remain apolitical. While it is arguable whether the Supreme Court has ever been apolitical, these days, the mask is definitely off.

In light of this reality, it is time for the left to turn some of its energy away from arguments that—however deftly they are delivered—will be ignored, along with the seemingly endless supply of high-court palace intrigue filling the headlines, and turn their attention toward the systemic solutions needed to win. Admittedly, the reforms that could undo conservative judicial supremacy will take significant effort—and a more favorable Democratic Congress—but if liberals want to move on from losing well to actually implementing their agenda, they need to stop valorizing excellent oral arguments and scathing dissents and start figuring out new ways to win.

Part of the problem is that, perhaps now more than ever before, law schools and the legal profession writ large present a myth of objective legal analysis and judicial decision-making that has little basis in reality. For decades, some lawyers have argued against the possibility of objective reasoning by judges. Lawyers, even more so than practitioners in other professions, are particularly poorly suited to such an analysis, given the adversarial, client-based nature of lawyering. As law professor Arthur Selwyn Miller put it, “The very reasoning process of lawyers, including judges and law professors, is from conclusion to premise rather than a logical deduction from major premises to conclusions.” However, many judges still maintain the pretense that they are impartial arbiters of the law, for instance during Chief Justice John Roberts’s confirmation hearing when he described judges as like umpires calling balls and strikes.

However, empirical evidence contradicts judges’ claims of impartiality. Studies have shown that many factors outside of the law itself can influence judges’ decisions. For example, researchers have shown that judges can be influenced by the demographic backgrounds of the parties and advocates appearing before them, with positive effects for white and Christian litigants and negative effects for Black, Asian American, and Jewish litigants. Judges have also been shown to side more frequently with litigants who share backgrounds with the judge and to be influenced by their professional backgrounds from before their time on the bench.

These impacts of implicit bias in judges’ decisions shed some light on Prelogar’s relatively low 46 percent win rate, which, despite her skill, is significantly lower than the 59 percent average for solicitors general since 2001. Regardless of an oral advocate’s performance, even for those judges trying for objectivity, it can be difficult to dislodge personal assumptions and perspectives. And this is to say nothing of nakedly partisan judges like Justice Samuel Alito, who often act more as advocates themselves rather than impartial observers.

While several studies have analyzed the impact of oral arguments in the Supreme Court, no study has found a definitive impact of advocates’ performances on the justices. Rather, the minor predictive value of justices’ behavior during argument fuels intense speculation about which way a case may go while the public waits for an actual decision, even if one side clearly had the better arguments and performance at the argument.

One place where oral arguments can make a difference is in making results “less bad” for the losing party. Surveys of judges and case studies suggest that oral arguments do not often change judges’ minds on the winning party in a case but that good arguments can convince some judges to moderate their positions. For Prelogar, this is an important form of harm reduction that she excels at. But while this is an important service, if we are talking about harm reduction rather than significant policy change, why do commentators spend so much time on oral arguments?

In law school, we learn about important legal arguments and opinions but not the contexts under which they arose. Rather than learning about how returning Black World War II veterans and their allies started organizing for racial equality, which helped kick off the twentieth-century Civil Rights Movement, we learn only about the successive, incremental legal wins made by the NAACP Legal Defense Fund that preceded Brown v. Board of Education. As important as those cases and their associated arguments were, without the organizers on the ground doing the work to change attitudes, it seems likely that Plessy v. Ferguson’s “separate but equal” doctrine would have remained the law of the land.

Similarly, Obergefell v. Hodges, which constitutionalized marriage equality, was one of the most significant legal wins for LGBTQ+ rights in the country’s history; it too was preceded by decades of organizing. Without the changes in public opinion facilitated by this movement work, this gain would have likely been impossible.

Oral arguments are generally the only window into justices’ thinking prior to the release, and especially in high-stakes cases, it makes sense that people could get caught up in overanalysis. And Elizabeth Prelogar is very good at her job. However, the amount of time and energy spent analyzing oral arguments and gushing over every performance does nothing to advance her actual work while distracting from avenues that could make it possible for her—and more importantly, the people affected by her cases—to win. And by valorizing putting up a good fight in an arena that may be an ineffective means of making change, we encourage people away from essential organizing and movement roles and toward legal advocacy, keeping the cycle moving. If liberals are serious about winning in the courts, they may need to look outside the courtroom.