Over three years have passed and more than 200 cases have been argued before the Supreme Court since Justice Clarence Thomas last uttered a word in oral arguments. According to Justice Thomas, he last spoke on February 22, 2006, during oral arguments for Bowles v. South Carolina.1 Critics have harped that Justice Thomas's silence suggests a lack of involvement in cases, but Justice Thomas attributes his silence to the belief "that if someone is talking, somebody should be listening."2 Since his book release,3 Justice Thomas has been more critical about the other Justices' frequent questioning in oral argument, proffering that his "colleagues should shut up."4
There can be no doubt that the Justices' back and forth questioning in oral argument impacts how lawyers present their cases. Justices Stevens and Alito have lamented that some of their colleagues' active involvement obstructs them from asking questions in a case and prevents lawyers from advancing arguments.5 The more active Justices—Scalia, Breyer, nowretired Justice Souter, and Chief Justice Roberts—have established an active presence in oral arguments. Justice Scalia has developed a notorious reputation for his sometimes bombastic and overly pugnacious presence in oral arguments.6 Likewise Chief Justice Roberts and Justices Breyer and Souter are all challenging participants in oral arguments. The Justices approach oral argument with different purposes in mind; whether that may be listening to a lawyer's arguments, asking a lawyer to clarify a question, or challenging a lawyer's argument, a Justice's involvement may vary case by case.
But does Justice Thomas's silence in oral argument lend itself to a more informed perspective? Is his silence ideal for considering and reflecting on issues? If a Justice focuses on listening and reflecting upon arguments rather than attempting to refute a lawyer's argument, then it seems the quiet Justice could have a real advantage in grasping the complexities of a case. Regardless of their silent or active involvement, judicial behavior plays an important role in oral argument. The information and arguments that lawyers present to Justices depend on the former's ability to answer a question or follow a line of reasoning without interruption. Similarly, Justices' ability to ask a question relies on an environment in which they are permitted the opportunity to inquire about a topic. More active Justices are most likely to control the flow of information through the direction of questioning, while less active Justices must either patiently wait for an opportunity to engage a lawyer, aggressively interrupt a previous line of questioning, or lose the opportunity to have their question answered.
In recent visits to Washington, D.C., in which I listened to nearly fifty oral arguments, I observed on numerous occasions a Justice's inquiry redirected by other Justices' questioning, active Justices preventing more reserved Justices from asking questions, and Justices obstructing a lawyer's argument with personal inquiries and long-winded hypotheticals. To a lay person, the process appeared disjointed, lopsided, and unfair. While lawyers and Supreme Court scholars have long recognized the turbulent nature of oral argument, few studies consider how judicial communication in oral arguments impacts the Justices' decision-making ability.
At its core, this article questions the cognitive influence communicative interactions in oral arguments may have upon the Justices' decision-making ability. This article opens inquiry into judicial behavior in oral arguments, by examining, from a communication perspective, the Justices' rhetorical discursive interaction and then considering the scholarly and social repercussions of the Justices' interaction.7 By offering a unique perspective through research and methodology, this article presents findings that are distinct from the common aggregate behavioral models and typical longitudinal studies conducted by political scientists and psychologists. In addition, analysis of a specific case enables research focused upon each Justice's individual rhetorical discursive interaction in oral argument. Mapping the Justices' individual behavior enables readers to determine the manner in which certain Justices may have controlled the discursive flow of information and arguments within the case's oral argument, and the mapping exposes a judicial discursive bias that may influence the Justices' decision-making ability.8
I. The Scholarly Landscape of Oral Arguments: Ignoring the Role of Communication
Traditional studies of the Supreme Court question the value of oral arguments, maintaining that "oral arguments [do not] play a significant role in the decision making of the U.S. Supreme Court."9 Political scientists largely dominate this skeptical viewpoint, ignoring the discursive interactional dimension of oral argument.10 Other researchers, dissenting from long-standing skepticism, emphasize the dynamic interactional nature of oral arguments and suggest that oral arguments play a crucial role in judicial decision making. These researchers disagree, however, about the significance of oral arguments, acknowledging that influence is difficult to determine given other variables' potential influence on the Justices, such as the parties' briefs, amicus curiae briefs, intra-court negotiations, lawyers' experience, and the external political environment.11
Most previous scholarly research on Supreme Court oral arguments has been conducted by political scientists who ironically pay very little attention to the role of communication in oral arguments.12 Until very recently, the only studies that considered the role of communication in oral arguments contributed little towards understanding the dynamic role of communication in oral arguments. Conducted by Milton Dickens and Ruth Schwartz, and by Stephen Wasby and his colleagues, both studies described the unique rhetorical challenges lawyers are presented with and noted the important role oral arguments play in providing lawyers and Justices with a final opportunity to distribute or clarify previous information.
Milton Dickens and Ruth Schwartz noted the unique nature of oral arguments in the Supreme Court, emphasizing that the Court's oral argumentation "differs from most other persuasive speaking situations."13 Dickens and Schwartz identify the challenge with which lawyers must struggle by noting that the Court "impose[s] additional constraints rendering inappropriate or ineffectual many rhetorical techniques commonly used in public speaking," and yet the lawyer's "oral effectiveness will be largely determined by his . . . rhetorical strategy" within the constraining environment.14 The preparation top advocates endure is testament to the challenging rhetorical situation oral argument presents.15 To prepare for "a single hour of oral argument," advocates must "become familiar with thousands of pages of briefs, previous testimony and decisions," distill the delivery into "an extremely small portion of the voluminous relevant materials," "speak within the confines of a formal set of rules," and "respond to questions or comments or commands from a highly trained intelligent and articulate group," all while standing "intellectually alone" before the Justices.16 Dickens and Schwartz's descriptive article simply calls scholars' attention to the unique rhetorical environment oral argument presents by distinguishing how it differs from traditional political communication.
While oral argument requires unusual rhetorical skills, Stephen Wasby and his colleagues suggest that the importance of oral argumentation lies in an advocate's ability to foreground essential information.17 At the heart of oral argumentation are the questions put forth by Justices, which provide lawyers with the opportunity to persuade the Justices. The Wasby article calls attention to the many purposes of oral argumentation through which Justices test policy, challenge logic with analogies, persuade other Justices of their reasonable positions, gather more information, clarify positions, and reduce cases to their essential arguments. They note that "for the lawyer, there is the reassurance that a case has been heard" as well as the ability "to concentrate on the points from his overall case he considers most important."18 For Justices, oral arguments emphasize "the most important elements in the case," but they also serve as a ritual which "legitimizes [their] function, provides a new opportunity to communicate with [their] colleagues, to obtain information about a case and [to clarify] points which may have been raised."19 However, of utmost importance to Wasby and his co-authors is the ability of oral arguments to assist Justices "in shaping the strategy he [or she] and his [or her] colleagues should follow" in resolving the case.20 Dickens and Schwartz, and Wasby and his colleagues urged others to learn more about the Court's unique communicative interactions, but their calls went unnoticed, and these two works, both published in the Quarterly Journal of Speech, were the first of their kind to attempt a communication style study of oral argumentation.21
The influence of the Justices' communication in oral arguments has been partially considered, most recently by Timothy Johnson, a prominent political scientist in Supreme Court studies. Johnson has conducted research on the Supreme Court which has led him to conclude that oral arguments do influence judicial decision making and lead Justices to test policy options within the political environment. 22 In order to determine the importance of oral arguments, Johnson evaluated "litigant and amicus curiae briefs, oral argument transcripts, notes and memoranda from the private papers of Supreme Court Justices, and the final decision handed down" for cases handled between 1972 and 1986.23 Johnson's comprehensive study is the first of its kind to conduct long-term research on communication to expose the connection between the information Justices gather in oral arguments and the development of those ideas in their final opinions.
Johnson adopts the strategic actor model as a means of understanding the Justices' communication.24 As strategic actors, Justices should gather as much information as possible in order to find the best possible solution in accordance with their preferences. Johnson describes his position more fully, proposing:
The first tenet of the strategic account is that [J]ustices strive to achieve their most preferred policy objectives. To do so they need information about all the policy choices available to them. I posit that oral arguments provide a time for [J]ustices to gather this information by raising questions concerning legal principles the Court should adopt, courses of action the Court should take, or a [J]ustice's beliefs about the content of a policy.25
For Johnson, oral arguments are critical because they inform Justices of policy implications by allowing them to explore the consequences of various alternatives.26 His study determines that Justices' questions in oral argument will focus on policy issues 40% of the time and 31% of questions will be related to the constitutionality of counsel's position; over 70% of Justices' questions will focus on either policy or constitutional matters.27 Johnson's conclusions are influential because they point to the importance of oral argument before the Supreme Court as a valuable tool for information gathering. His study is really the first of its kind in political science to establish the importance of oral argument, and to do so through a rigorous examination. As a consequence of his study, the strategic actor model has gained prominence as a primary model for understanding Supreme Court decision making.
Although Johnson's study involves a comprehensive survey of Supreme Court opinions and oral arguments, his study leaves a number of questions as a consequence of both his theoretical model and method. First, Johnson's aggregate findings fail to account for individual differences in Justices' decision making or approaches to oral argument. For example, Justice Scalia argues with counselors incessantly while Justice Thomas rarely engages in open debate, and it seems unlikely that both Justices share a similar decision-making process or a similar approach to information gathering. Second, Johnson ignores whether Justices treat counselors equally or seek balanced information, seemingly an important underlying indicator of the strategic actor model. Third, he overlooks the combination of multiple voices within a case (litigant and amicus briefs, Justice conferences, and senior Justice voting patterns) that could influence a Justice's decision. For instance, a Justice could be persuaded by a brief to rule in favor of a litigant and use a frame provided by a counselor in oral argument to explain his ruling.
Fourth, the a priori adoption of the strategic actor prevents emerging patterns from guiding Johnson's theorizing, influencing how Johnson makes sense of or interprets the oral arguments. Imposing an external theory limits and frames his conclusions prior to analysis. Instead of discerning what patterns may develop from oral arguments, Johnson proposes a pattern of behavior and then discovers the behavior, much like finding a solution before understanding the problem. Johnson's use of the strategic actor model eschews substantial scholarly research that suggests humans do not often conform to the strategic actor model, but more often invoke a process of sensemaking to process information and make decisions.28
Where the strategic actor model suggests that humans approach solutions to problems in relatively systematic ways, sensemaking suggests that humans employ cognitive commitments to reduce the ambiguity of an environment due to conflicting, excessive, uncertain, or undesirable information.29 Where the strategic actor may articulate universal human behavior, sensemaking captures a wide range of human behavior within specific circumstances and proposes that in order to understand how humans make sense of the world, we should focus on how people selectively see and construct the world.30 Sensemaking can be both deliberate and unintentional, but at its core, it emphasizes the way in which communication enables people to frame problems and reach solutions.31 Because sensemaking emphasizes the role communication plays in human decisions, and the manner by which communication shapes people's understanding of the world, it seems a practical model that can help further explain the importance of oral argument.32 While Johnson may not have chosen a practical model of decision making, his reliance on only one model of human decision making leaves his scholarship vulnerable to inquiries of more accepted and verifiable forms of decision making.
Fifth, the ambiguous nature of the strategic actor model prevents a clear articulation of behavioral expectations in humans, potentially subsuming all human behavior and therefore capable of explaining none.33 Sixth, and ironically but perhaps most importantly, Johnson's study on oral argument does not consider the dynamic role communication plays in the environment of oral arguments. His understanding of communication depends upon the eclipsed transmission model of communication in which interaction occurs between two actors who use speech solely to transmit information to one another. Johnson fails to consider the rhetorical nature of a Justice asking questions or making statements to influence his or her colleagues. He ignores the tone of Justices' statements and questions, which may reveal more about a statement's purpose than any other quality. Finally, Johnson's study also fails to consider that each case presents unique situations and scenarios. Indeed the Supreme Court rarely grants certiorari on clear issues on which the Court has already ruled, and while cases may fall into similar legal categories (death penalty, abortion, freedom of speech, habeas corpus, and so on), each case often presents unique circumstances and contains issues that may evoke different communicative interactional responses among Justices.34
Johnson's research suggests that the importance of oral arguments lies in the opportunity for Justices to gather information that better informs their decisions, but he overlooks evaluating how Justices could be influenced by their approach to gathering information. Johnson's strategic actor model suggests that we should observe relatively balanced behavior in the manner in which a Justice approaches oral argument to gather information. In order for a Justice to make the best possible decision, he or she must be equally well informed and must gather information from both sides in a balanced approach. If Justices were seeking to make the best possible decision, as Johnson claims, then it seems likely that they would question counselors equally. However, Johnson's study ignores micro individual interactions between lawyers and Justices and emphasizes strategic decision making on the larger macro level in which oral arguments are only one key component. Johnson's study fails to consider how communicative interaction within oral argument could impact how Justices gather information and hence behave in contrast to the strategic actor model. This study attempts to improve upon Johnson's research on oral arguments by accounting for Justices' communicative interaction through an examination of the oral argument in Morse v. Frederick35 in order to understand the Justices' behavior on the micro individual level.
II. Studying the Case of "Bong Hits 4 Jesus" with a Mixture of Unusual Methods
Morse v. Frederick was a highly publicized 2007 case in which a student, Joseph Frederick, claimed First Amendment protection for his sign that read "Bong Hits 4 Jesus."36 The student unfurled his banner across the street from where his fellow high school students were gathering to watch the passing of the Olympic torch.37 Principal Deborah Morse believed the sign promoted the use of illegal drugs and directed Frederick to take down the sign. When Frederick refused to take the sign down, Morse confiscated the sign and later suspended him.38 Frederick appealed the suspension to the school's superintendent, who upheld his suspension.39 In 2007 the Supreme Court handed down a 5-4 ruling in favor of Morse, determining that schools have an interest in safeguarding students from speech that can be reasonably interpreted to encourage illegal drug use.40 Kenneth Starr and Edwin Kneedler (Deputy Solicitor General) represented Deborah Morse, and Douglas Mertz represented Joseph Frederick.41 Topically, the case provides an interesting and controversial issue of First Amendment rights from which to gauge Justices' behavior. Oral argument in the case was vigorous and nearly all the Justices were involved in questioning at some stage.
The following study examines oral argument at the micro or rhetorical discursive level by studying the communicative interaction between Justices and lawyers to better understand how judicial interaction influences information gathering and argument development. In order to evaluate judicial interaction within oral arguments, I analyzed the oral arguments in Morse v. Frederick by posing the following questions to consider judicial communication in a variety of areas:
Do Justices demonstrate a substantial preference for one counsel over another in their
1. challenging of counsel,
2. permitting counsel an equal opportunity to respond,
3. frequency at which they interrupt counsel,
4. assistance of counsel's arguments, and
5. treatment of counsel?
To evaluate the case, I obtained transcripts of oral argument from the Supreme Court website and listened to oral arguments on Oyez.org.42 In analyzing arguments, I tallied the number of instances in which Justices interrupted lawyers based upon the actual transcript as well as listening to the argument. Argument transcripts only record mid-sentence interruptions, but audio files enabled me to discern interruptions not captured in the transcript. While interruptions can reveal a more challenging rhetorical environment, understanding how frequently Justices challenged, assisted, or neutrally questioned counsel is also important in understanding rhetorical discursive interaction. To determine whether Justices equally challenged counsel, I divided Justices' statements or questions between those they made during the petitioner's and respondent's oral arguments, and then categorized statements or questions based upon whether they challenged or assisted the lawyer's argument. I also listened to the tone of their voice for any sense of hostility or sarcasm. This tally enabled me to determine how commonly Justices supported or challenged counsel.43 By achieving a more nuanced understanding of Justices' statements, we can better understand Justices' rhetorical discursive interaction. Finally, in order to determine equal speaking time, I timed speaking moments for all participants in oral argument. I did not include moments in which a Justice or lawyer was forced to repeat a statement or question. Quantitative recordings provide an efficient means of capturing iterations without providing readers with a list of assisting or challenging statements made by the Justices. Qualitative analysis complements quantitative findings by providing a more transparent examination of the Justices' treatment of counsel.
Using a qualitative approach to understand whether Justices showed preference for one counsel over another, I compared whether or not Justices assisted counselors equally, by providing them with frames or arguments that strengthened their position. I also compared whether Justices equally ridiculed or denigrated counselors to determine if Justices treated counselors preferentially.
Lastly, my analysis has been informed by my firsthand observations of nearly fifty oral arguments before the Supreme Court, interviews with top advocates who regularly argue before the Court, and a discussion about oral argument with Associate Justice Stephen Breyer. Witnessing oral argument and learning about the physical behavior and rhetorical discursive interaction of Justices provided a level of understanding which more fully informed my reading of the transcript from Morse v. Frederick. My experience at the Court forced me to consider quantitative and qualitative approaches that could capture the dynamic interactions occurring within oral argument. Observation of physical behavior and rhetorical interaction at the Court revealed the displeasure Justices feel when their line of questioning has been interrupted. At times, Justices would lean forward to ask a question and, before uttering a remark, another Justice would speak first and shift the course of inquiry. Justices appeared to be irritated by the rhetorical interaction of other Justices, and I could not help but wonder how many Justices still held questions they wanted to ask, or how many questions were never answered because of another Justice's interruption.
* © Ryan Malphurs 2010. Ryan Malphurs received his Ph. D. in Communication from Texas A&M University. He works as a litigation consultant for Tara Trask & Associates where he conducts general trial consulting and appellate research. Ryan would like to thank Dr. James Arnt Aune, Professor Linda Berger, and Professor Teresa Phelps for their insight and assistance in the development of this article. He would also like to thank David Frederick, Georgetown's Supreme Court Institute, Oyez.org, and the Glasscock Center for their contributions to his research.
1 Dahlia Lithwick, Open Books: Why Supreme Court Justices' Speeches Are Less Important Than Oral Arguments, Slate.com (Nov. 30, 2007) (available at http://www.slate.com/id/2178798/).
2 Associated Press, Thomas Silent as Supreme Court Talks On and On, CNN.com (Feb. 25, 2008) (available at http://www.kenston.k12.oh.us/khs/academics/social-studies/ap-government/thomas-silent-as-supreme-court-talks-on-andon. pdf).
3 Clarence Thomas, My Grandfather's Son (Harper 2007).
4 Lithwick, supra n. 1, at 1.
5 See Associated Press, supra n. 2, at 1. "I really would like to hear what those reasons are without interruption from all of my colleagues," Justice John Paul Stevens said at an argument in the fall. The newest Justice, Samuel Alito, has said he initially found it hard to get a question in sometimes amid all the former law professors on the court. Id.
6 See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 46 (Doubleday 2007).
7 I have chosen to use the term "rhetorical discursive interaction" because oral arguments necessarily involve persuasion, the essence of rhetoric, and yet they deal with larger issues that reflect social discourse; the term reflects the occurrence of both concepts in oral argument.
8 My use of the term "bias" may prompt readers to believe that I am suggesting an overt preference for one counsel versus another. While the Justices may in fact hold a distinct bias when approaching oral arguments, my interest lies in studying how their rhetorical discursive interaction in oral arguments may influence the flow of information and arguments, as well as how discourse impacts a Justice's ability to evaluate a case.
9 Kevin T. McGuire, Book Review, 15 Law & Pol. 107, 107 (2005) (reviewing Timothy Johnson, Oral Arguments and Decision Making on the United States Supreme Court (SUNY Press 2004)).
10 See e.g. David W. Rhode & Harold J. Spaeth, Supreme Court Decision Making 211–12 (W.H. Freeman 1976); Jeffrey A. Segal & Albert D. Cover, Ideological Values and Votes of U.S. Supreme Court Justices, 83 Am. Political Sci. Rev. 557 (1989) (ignoring oral argument when looking at judicial influences); Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model 208–09 (Cambridge U. Press 1993); Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 280–81 (Cambridge U. Press 2002) [hereinafter Segal & Spaeth, The Attitudinal Model Revisited].
11 See Kevin T. McGuire, Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success, 57 J. Pol. 187, 188–95 (1995); Paul M. Collins, Lobbyists Before the U.S. Supreme Court: Investigating the Influence of Amicus Curiae Briefs, 60 Political Research Q. 55, 55 (2007); see generally Donald R. Songer & Stefanie A Lindquist, Not the Whole Story: The Impact of Justices' Values on Supreme Court Decision Making, 40 Am. J. Political Sci. 1049 (1996); Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 Am. J. Political Sci. 362 (2001); Timothy R. Johnson, Information, Oral Arguments, and Supreme Court Decision Making, 29 Am. Pol. Research 331 (2001); Johnson, supra n. 9; Timothy R. Johnson, Paul J. Wahlbeck & James F. Spriggs II, The Influence of Oral Arguments on the U.S. Supreme Court, 100 Am. Political Sci. Rev. 99 (2006); James N. Schubert, Steven A. Peterson, Glendon Schubert & Stephen Wasby, Observing Supreme Court Oral Argument: A Biosocial Approach, 11 Pol. & Life Sci. 35 (1992); Donald S. Cohen, Judicial Predictability in the United States Supreme Court Advocacy: An Analysis of the Oral Argument, 2 U. Puget Sound L. Rev. 89 (1978).
12 See e.g. Johnson, supra n. 9 (publishing 140-page book on the effects of oral argument on decision making without discussing communication).
13 Milton Dickens & Ruth E. Schwartz, Oral Argument before the Supreme Court: Marshall v. Davis in the School Segregation Cases, 57 Q. J. Speech 32, 41 (1971).
14 Id. at 41–42.
15 Nearly every top advocate I spoke with mentioned that on average they spend about 100 hours per case preparing for oral arguments, and argue between two and five moot courts before appearing before the Court.
16 Dickens & Schwartz, supra n. 13, at 41–42.
17 Stephen Wasby, Anthony D'Amato & Rosemary Metrailer, The Functions of Oral Argument in the U.S. Supreme Court, 62 Q. J. Speech 410, 413 (1976).
18 Id. at 422.
21 Ironically Stephen Wasby is a political scientist who published his findings in a Communication journal.
22 For commentary on the influence of Johnson's study, see book reviews by Kevin McGuire, supra n. 9, and Brian Palmer, Book Review, 26 Just. Sys. J. 245 (2005) (reviewing Johnson, supra n. 9).
23 Johnson, supra n. 9, at 17.
24 See id. at 6–7 (contrasting the strategic actor model with the attitudinal model). The strategic actor model varies with each scientist who employs it. For other uses of the strategic actor model in judicial inquiry, see e.g. Rafel Gely & Pablo Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. Econ. & Org. 263 (1990); William Eskridge, Reneging on History: Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991); John Ferejohn & Barry Weingast, Limitation of Statutes: Strategic Statutory Interpretation, 80 Geo. L. Rev. 565 (1992); Lee Epstein & Jack Knight, The Choices Justices Make (Cong. Q. Press 1998); Forrest Maltzman, James Sprigs & Paul Wahlbeck, Crafting Law on the Supreme Court: The Collegial Game (Cambridge U. Press 2000).
25 Johnson, supra n. 9, at 23–24.
27 For a more extensive discussion, see id. at 21–56.
28 On the influence and widespread use of the theory of sensemaking, see e.g. Dennis A. Gioia & Kumar Chittipeddi, Sensemaking and Sensegiving in Strategic Change Initiation, 12 Strategic Mgt. J. 433 (1991); Meryl Reis Louis, Surprise and Sense Making: What Newcomers Experience in Entering Unfamiliar Organizational Settings, 25 Admin. Sci. Q. 226 (1980); Meryl Reis Louis & Robert L. Sutton, Switching Cognitive Gears: From Habits of Mind to Active Thinking, 44 Human Relations 55 (1991); William H. Starbuck & Frances J. Milliken, Executives' Perceptual Filters: What They Notice and How TheyMake Sense, in The Executive Effect 51–58 (Donald Hambrick ed., JAI Press 1988) (discussing sensemaking and its effect on filtering); Karl E. Weick, Making Sense of the Organization (Blackwell 2001) [hereinafter Weick, Making Sense of the Organization]; Karl E. Weick, Sensemaking in Organizations (Sage 1995) [hereinafter Weick, Sensemaking in Organizations].
29 SeeWeick, Sensemaking in Organizations, supra n. 28, at 83–105 (discussing occasions for sensemaking).
30 Id. at 4 (discussing the concept of sensemaking).
32 See supra n. 28 and accompanying text.
33 For a discussion of limitations of the strategic actor model, see Segal & Spaeth, The Attitudinal Model Revisited, supra n. 10, at 97–110.
34 While my criticisms of Johnson's research are numerous, the criticisms derive largely from differences between fields of study. Science values generalizable findings that contribute to universal knowledge. Areas of the humanities, such as communication, may foreground the importance of limited uniquely situated knowledge. Johnson's research broadly sheds new understandings upon a disregarded area of inquiry. I hope to expand upon his findings, rather than dismiss them, by narrowly focusing upon individual interaction.
35 551 U.S. 393 (2007).
36 Id. at 396.
37 Id. at 397.
38 Id. at 398–99.
39 Id. at 399.
40 Id. at 408.
41 Id. at 395.
42Morse v. Frederick, U.S. Supreme Court Case Summary & Oral Argument, http://www. http://www.oyez.org/cases/ 2000–2009/2006/2006_06_278 (accessed Apr. 18, 2010).
43 I deemed challenging statements/questions to be those that questioned the argument or proposed a hypothetical that tested the counsel's argument (e.g. "That doesn't make any sense to me. Does it depend on his intent, whether or not he intended to be truant that afternoon?"). See Official Transcript of Oral Argument, Morse v. Frederick 55 (Mar. 19, 2007) (available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html). I considered assisting statements/questions to be helpful to the lawyer in framing or emphasizing aspects of the argument (e.g. Scalia: "This banner was interpreted as meaning smoke pot, no?" Starr: "It was interpreted—exactly, yes."). See id. at 8. I recorded neutral statements/questions as those statements by Justices asking for small matters of fact, or references in the brief (e.g. "Can I ask you another record point, just so I know where to look?"). See id. at 46.