There are several great summaries out there about what happened at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham (pictured, right) on Friday.
When analyzing oral arguments, I always caution that any connection between a judge’s questions and his or her ultimate decision is purely speculative. There are court-watchers who do studies about these things. But my reports on marriage equality hearings at the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, not to mention at the Supreme Court, suggest that we can draw conclusions. On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.
First, I will discuss those metrics. Then I will discuss where we go from here.
Questions Asked To Lawyers. This metric is based on the notion that appellate court judges tend to ask more questions to the side of the argument they are inclined to oppose. That makes some sense: you ask questions because you are skeptical. As a related point, the side peppered with more questions presumably has the tougher case to make, which makes it more likely to lose. Sometimes, a judge will lob a helping hand at a beleaguered attorney, but you can bracket those and come up with a simple analysis.