May 2, 2006

"You have to be ready now to make some kind of affirmative presentation."

Advice for advocates arguing to the Supreme Court. The Justices don't jump in with questions as they used to:
When former Justice Sandra Day O'Connor was on the court, [lawyer Carter G. Phillips] recalled, she asked the first question so quickly and so predictably that there was little point in preparing an elegant opening argument. "Now you might get three or four minutes" without interruption, he said....

Has Chief Justice John G. Roberts Jr., himself the veteran of 39 Supreme Court arguments as a lawyer, shared with his colleagues the perspective from the other side of the bench, or maybe even laid down some new rules?

The latter theory is unlikely; the court's ethos calls for signaling rather than rule-making. To the extent that the new chief justice is leading by example — and there is no doubt that he is in charge of the courtroom — he is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.
A fascinating change in style. Who knows what it has to do with the content of the decisions we will receive from the Roberts Court?

10 comments:

Enochs said...

I'm almost worried this means a closed-mindedness when it comes to oral arguments. After all, isn't what's said in the opinions that matter the most for the record? I've always thought the Court's mind is usually made up before oral arguments anyway. Maybe I'm wrong?

Wickedpinto said...

I see it as holding the Supremes to the same standards as other courts. Rather than allowing the justices to ask leading questions from the get go, making the decision about the predilections (spelling) of the supremes, it requres that those arguing a case be able to make a real argument PRIOR to the questioning. If the justices are too lazy to read the briefs and wait for the points to be made in court, then the justices are trying to replace their own opinions, on top of the opinions of the oposing counsels.

like I said I'm not a lawyer, but the purpose of the adversarial system, is that it is necessary for the individuals to make their arguments. If the justices let the lawyers dig their own grave or build their own mountain, that is up to them, not up to the court, and the court can then argue against the oppinions of the adversaries using only the language that has been introduced by the advocates?

I don't know how to put this in lawyerish, but basicaly, heres how I see law.

One side bitches, and cites other people who have bitched in the same way. The other side bitches about the whininess of the first party, and cites people who have complained about bitchiness in the same way that they want to. Then the justices look at the citations, and the bitching and the complaining and realize who is least bitchy and sides with them.

As long as the court allows the bitcher, and the complainer to define why they are bitching and complaining, then they are doing their job, it isn't the job of the justices to FIND the bitches and complaints FOR the 2 adversaries.

am I wrong Madam Ann?

Bissage said...

I don't know what it has to do with the content of the decisions we will receive from the Roberts Court. But I do know it makes me an even bigger admirer of our new Chief Justice.

Bissage said...

enochs: I don't see it as indicating "a closed-mindedness." I see it as a true leader's kindly admonition that the other Justices should check their egos at the door and be on their best behaviour.

wickedpinto: The purpose of the adversarial system is to obtain Justice. I mean that in all sincerity.

Simon said...

I know the answer.

Dan Henninger had a column in the WSJ last week, in which he documents his visit to the Court for oral arguments, noting that towards the end "Justice Scalia has now sunk so low in his chair that only the top half of his face is visible to the gallery. He looks like he's floating in a Jacuzzi." Well, it's obvious, isn't it? The more relaxed tone? The more collegial style? Isn't it obvious: they've installed a jacuzzi behind the bench! :p

Bissage said...

The Vibro-Chairs (tm) just weren't doing it!

Marghlar said...

I see it as holding the Supremes to the same standards as other courts. Rather than allowing the justices to ask leading questions from the get go, making the decision about the predilections (spelling) of the supremes, it requres that those arguing a case be able to make a real argument PRIOR to the questioning

Wickedpinto, the lawyers have always had a chance to argue before the judge asks a question. It's called the briefing, and it's far more important in any case than is oral argument. Most judges say that oral argument only changes their minds in about 10% of cases. This is because oral argument is primarily about clarifying positions that (should) have already been communicated in a brief.

I personally think that Q&A is a more productive use of appellate advoacy time than making speeches (which probably duplicate the brief), but then again, Roberts would know better than just about anyone, so if this is a change driven by him, it's probably for the better.

Joe said...

Oral argument is most valuable when the court, having seen the briefs, is troubled by an issue - that is when the questioning is most sharp.
Every appellate advocate must be prepared enough to talk about their case if the panel is quiet and to respond to questions from a hot panel.

Marghlar said...

Joe: Absolutely. I think Kozinski was right when he suggested that although it's very hard to win a losing case at oral argument, it's fairly easy to lose a winning case there. Counsel should always be prepared to talk or answer questions.

Still, I think oral argument gets vested with a significance out of proportion to its importance. The briefs are almost always more important.

Marghlar said...

Orin Kerr has a reasonable explanation for this phenomenon, that seems plausible:

When the same set of nine Justices had been on the bench together for eleven years, the dynamics were well-settled. Everyone knew who the swing vote was, and how other Justices might react to a given line of questioning. With new Justices, there is much more uncertainty. And with uncertainty comes fewer questions. That’s one theory, at least.