The police departments in Avon and Somerset, England have set up what they are calling "chat benches" in two local parks in an attempt to get people sitting and talking to one another once again, CNN reported. The benches, it added, even come with a sign that reads, "Sit here if you don't mind someone stopping to say hello! To help us tackle loneliness and isolation in the community we The departments told CNN, 17 percent of their elderly populations speak to friends and neighbors less than once a week. Because of this, the department explained, the elderly are becoming more susceptible to scams, doorstep crime, and internet fraud.
I conclude with certain concrete proposals as to how judges, including Supreme Court justices, can maximize the democratic and functional virtues of active oral arguments, while avoiding the worst vices of a hot bench. To unpack this argument, let me begin by discussing some virtues of active oral hearings. From a democratic standpoint, a hot bench can: 1 afford greater transparency into judicial decision-making; 2 increase judicial accountability; 3 promote constitutional dialogue; and 4 orient judges towards the need for judicial minimalism.
Consider first how a hot bench can foster transparency in judicial decision-making. Many parts of the adjudicative process are shrouded in secrecy. Judicial deliberations and post-hearing conferences are confidential.
Law clerks, with whom the justices work closely, are sworn to secrecy. The final draft of a judicial decision has been refined and improved over time. Oral argument, however, constitutes one of the most spontaneous and unfiltered parts of the appellate adjudicative process. Because oral hearings are open to the public, audio recorded, and transcribed, everyone can assess whether active justices appear to be as fair and impartial as they claim to be.
A hot bench can thus foster transparency in a manner that permits the public to judge its judges. Second, active oral arguments allow for a new form of judicial accountability.
A hot bench helped expose the problems of gendered interruptions and other negative judicial tendencies. Furthermore, the wealth of information produced during oral argument is used to hold the justices publicly accountable. A hot bench allows us to measure whether interruptions — gendered or not — decrease or increase over time.
When justices are active, we can assess to what degree they ask supportive versus antagonistic questions to a party whose position is consistent with their ideological tendencies. Third, a hot bench enables a form of constitutional dialogue between the judiciary, the parties, and representatives of the other branches of government. Active oral hearings provide a live opportunity for the justices to engage in an open and public exchange with these different stakeholders in order to collectively steer the development of the law and the Constitution.
Fourth, active oral arguments can orient judges towards the virtues of judicial minimalism, a theory of adjudication advanced by Cass Sunstein. Judicial minimalism entails that judges decide no more than is required in a given case. The theory strives to respect the separation of powers, to reduce future uncertainty and error costs, and to ensure that other branches of government solve matters in which they possess greater expertise or institutional capacity.
When the justices ask hypothetical questions during oral argument, they are given a sense of how committing to a given principle or outcome suggested by a party may misfire in the future. Answers to hypothetical questions — or the lack thereof — can alert justices to the difficulties in adopting an adjudicative path that may prove counterproductive.
A hot bench can remind justices of what they do not know and cannot predict. In doing so, it can steer the court towards the advantages of deciding cases in a more minimalist fashion. Active oral hearings help justices acquire information that is most responsive to their concerns. They can use oral argument to test out certain principles or outcomes without having to commit to them.
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A hot bench can also assist the justices in reaching majorities and avoiding the confusion inherent to plurality opinions. Even if judges do not initially agree about which solution is best, they can far more easily agree about which solutions are very bad. Using hypothetical questions, they begin to form majorities by first screening out the most error-prone or unpredictable ways to resolve a case. Here is the problem, though. Even if a hot bench is capable of advancing these types of democratic and functionalist values, that does not mean that it will.
True, active justices may promote transparency and accountability in judicial decision-making. Part of the problem with the new oral argument is that there are many vices to a hot bench. In some contexts, the justices will needlessly sacrifice certain democratic or functionalist values in pursuit of others. The justices may sacrifice the value of political equality through gendered interruptions that seek greater clarity on some point.
They might put into question their own perceived impartiality by asking questions that advocate positions and have no information-seeking value. Because the hot bench shows no signs of disappearing, what can be done to capitalize on the benefits of active oral arguments while avoiding its burdens? Barry Sullivan and Megan Canty have argued that the justices can allocate a specific amount of uninterrupted pleading time to the advocates at the beginning and end of hearings, which gives them greater latitude to shape the course of the proceedings.
Sullivan and Canty also suggest that it may also be possible to extend — even marginally — the amount of time allocated for oral argument. Another option is for the associate justices to communicate their most pressing concerns about the case to the chief justice in writing before the hearing takes place. The chief justice can then inform the parties of those concerns prior to oral argument. This would allow the parties to focus their pleading on the most important aspects of the case, while also respecting the convention that the justices do not discuss the cases prior to the hearing.
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