Hot Bench: A Theory of Appellate Adjudication

Abstract

The Supreme Court justices are talking. And they are talking more than ever during oral argument. The term “hot bench” implies that appellate judges engage in vibrant verbal exchanges with the parties during oral hearings. As part of the new oral argument, Supreme Court justices now speak more while the parties speak less, they interrupt both their colleagues and the parties (especially women) more frequently than in the past, and some of their questions advocate for positions rather than seek information. A hot bench raises crucial concerns about the nature of oral argument and appellate judges’ role in a constitutional democracy. This Article addresses those concerns and advances a theory about the connection between a hot bench and appellate adjudication. It provides a new account of how active hearings can promote certain functionalist and democratic virtues of oral argument that cold benches and written decisions cannot. Appealing to asymmetric information theory in economics, this Article demonstrates how judges form majorities through signaling and screening. A more well-rounded account of a hot bench’s value, however, requires an examination of its vices as well as its virtues. This Article concludes by demonstrating why appellate judges must avoid particularly costly trade-offs and how they can do so.