I want to raise a question about the citation of statements made by Justices at oral argument. This never used to happen, in part because such transcripts were either unavailable or imprecise. In recent years, though, you see Supreme Court opinions that cite statements made by a Justice at argument.
My question is–what purpose is served by this? Citing something a lawyer said at argument might be valuable. If counsel takes a position there, that can be fairly treated as a position in the litigation even if it is not stated in the brief. But a Justice asking a question or making a statement is not taking a position. Why, then, have the Justices taken to citing other questions?
I may look into this further, as I find the issue of transparency (or lack thereof) about oral arguments and hand-down days fascinating.