Reading the Kousisis Tea Leaves: How the Justices' Oral Argument Questions Foreshadowed Their Opinions

I created this episode to highlight and contrast the Justices' questions and comments at oral argument to the written opinion in Kousisis.

While all Justices agreed on rejecting the economic-loss requirement, their different concerns and questioning approaches during oral argument directly predicted the fragmented reasoning that would characterize their written opinions. The oral argument served as a laboratory for testing legal theories that would ultimately prove difficult to reconcile in a single coherent framework, explaining why this unanimous result required four separate opinions to express the Court's reasoning. Specifically:

• Justice Barrett used oral argument to test the coherence of competing legal standards, ultimately crafting a majority opinion that rejected petitioners' approach while leaving significant questions unresolved.
• Justice Thomas used his questioning to explore the specific regulatory context, leading to a concurrence focused on materiality as a limiting principle in DBE cases specifically.
• Justice Gorsuch consistently probed the boundaries between criminal and non-criminal conduct, resulting in a concurrence defending traditional common-law limitations on fraud liability.
• Justice Sotomayor maintained focus on the specific case facts and narrow legal question, producing a concurrence that warns against broader doctrinal pronouncements.

Website Link to Oral Argument: Here.

Apple Podcast Link to Oral Argument: Here.

Website Link to Opinion Summary: Here.

Apple Podcast Link to Opinion Summary: Here.