By Dr. Ken Broda Bahm:
All eyes are on Justice Kennedy at the conclusion of last week’s Supreme Court oral arguments on the constitutionality of the Affordable Care Act. As a closely analyzed swing vote, the Justice’s words are scrutinized like the tea leaves of the upcoming verdict expected in June. In a well-researched piece in The New York Times, author Adam Liptak focuses on how the parties tailored their arguments to appeal to Justice Kennedy’s central motivating principle: liberty. The analysis points to a lesson that all advocates who engage in oral arguments should take to heart: figure out what drives your judge’s thinking and frame your arguments along those lines.
The concept is familiar to anyone who has studied public speaking or rhetoric. The essential lesson is that you need to adapt to your audience. But the legal arena, with its emphasis on the neutral standards of law, can sometimes trick advocates into a belief that success just depends on the correct application of law and facts. Without an appreciation of the uniqueness of your decision maker, however, you aren’t really persuading. This post takes a look at this principle as it relates to Justice Kennedy’s dialogue in the healthcare oral arguments.
Here is a perspective that you may not have considered:
All Persuasion is Self-Persuasion. Advocates Merely Try to Help the Process.
Persuaders might be tempted to think in terms of what I call a “consumer model” of argument in which we see audiences as either “buying” or “not buying” the ideas sold by an advocate. Essentially passive, the audience is simply seen as accepting or rejecting what it is presented. Anyone who has spent time analyzing audiences, and certainly anyone who has spent time interviewing jurors, knows this isn’t the way it works. Persuasion is an internal process, and it is engaged when your decision makers work through a problem on their own. They’re informed and influenced by the advocate’s appeals, definitely, but they ultimately own the critical process. In other words, your target is engaged in self-persuasion and you are just there to help.
I believe that this perspective applies to juries, but it applies most emphatically to the legally trained audience of judges. Good judges don’t simply sit behind the bench, listen, and then accept or reject your position. They carefully construct a result and rationale that will ultimately become a written opinion. They use your communication — briefs and oral arguments – as raw material, inspiration, foil, and sounding board. The implication of this is that you need to think about your advocacy, not as just presenting a finely crafted position to your judges, but as reasoning with them. To do that, you need to focus on what generally drives and animates your judge’s decisions.
Returning to the example of Justice Kennedy, I see three ways to apply that perspective to oral arguments:
1. Learn What Motivates.
A judge’s past decisions are a guide to their future ones, not in the narrow sense of predicting a verdict, but in the broader sense of predicting how they’ll reason about the new case. For Supreme Court swing-voter Justice Kennedy, those who have closely followed and analyzed his decisions have focused on liberty as the central motivator. For example, in a recent unanimous opinion of the Court (Bond v. United States, 564 U.S., 2011) on an issue that bears on issues underlying the Affordable Care Act, Justice Kennedy wrote about the role of federalism as a tool that “protects the liberty of the individual from arbitrary power,” resolving disputes over the meaning of federal authority by returning at several points in the opinion to that central role. Two books written about Justice Kennedy have also focused on his particular concept of liberty: Helen Knowles’ The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, and Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty.
So you can bet that with Justice Kennedy widely expected to be the swing vote on healthcare reform, this motivator was closely studied by the advocates. For any judge, the driver of decisions may be the ideals of efficiency, reasonability, equity, simplicity or a more nuanced constellation of attitudes. The conclusion that for Justice Kennedy, the touchstone is liberty, posed some challenges to the government’s case that the Constitution permits an individual mandate under the Commerce Clause as well as expanded federal mandates on the states.
2. Frame Arguments in Motivated Terms.
You might say that the central notion of individual liberty, set against the government’s power to regulate, was the central theme underlying all of the oral argument before the Supreme Court last week. But in Wednesday’s concluding session, the idea moved to center stage. Solicitor General Donald Verrilli ended his time by noting the millions of people without insurance that the Act addresses, and the “important connection, a profound connection, between that problem and liberty.” And he further noted that the Medicaid expansion would allow greater coverage: “As a result of the care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
Representing the states challenging the law, however, Paul Clement referred to the Solicitor in saying, “You think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
As I’ve written in the past, advocates and audiences alike inhabit a rhetorical universe with its own “god terms” and “devil terms.” In the case of the example above, the advocates have intelligently seized on the Justice’s known god term in framing their arguments. We will need to wait until June to see how much it influenced the Court’s opinions.
3. Provide Solutions.
The questions in oral argument are not the setting for a “quiz bowl” or a test. The judge is not asking the question in order to see if you know the answer. Instead, judge is trying to work through an issue, to develop an idea with — or quite often against — your advocacy. Viewed in that light, a question requires not just an answer, but a solution to a problem.
A good example of this can be seen in Tuesday’s oral arguments focusing on the individual mandate. Much of the questioning focused on the search for a “limiting principle,” that would allow the Court to articulate why an individual mandate to buy health insurance is constitutional, while other examples of compelled purchase, like broccoli, is not. Early in the argument, for example, Justice Kennedy asked Donald Verrilli, “Can you identify for us some limits on the Commerce Clause?” The Solicitor General responded with two: 1) No “forced purchases of commodities for the purpose of stimulating demand” (no broccoli), and 2) No forced purchases of insurance “in situations in which insurance doesn’t serve as the [primary] method of payment for service.” Subsequent argument then focused on whether these were distinctions without a difference, or whether they were meaningful tests that the Court could rely upon in setting a standard. Viewed in that light, the oral arguments became a collective effort to address that problem — still adversarial of course, but useful to the decision makers because it focused on solutions.
In this dispute, Justice Kennedy may be in the uniquely important place of being the least predictable vote on the court. But every judge is unique. The presumed neutrality of the law may lead us to think that it is just a matter of finding and presenting the right argument. But communication has always been about analyzing the audience, and judicial argument is no different.
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Posts in the Supreme Court Series:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge’s Motivating Principle (This Post)
- Oral Arguments: Cut In To Your Case Before You’re Cut Off By Your Judge
- Don’t Let Your Judge Reduce You to Absurdity
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Other Posts on Motivated Argument:
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They’re Neutral
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Photo Credit: Matt Biddulph, Flickr Creative Commons