October 6, 2006
"It's like a highly stylized Japanese theater."
Former Solicitor General Ted Olson describes Supreme Court oral argument. "The justices use questions to make points to their colleagues." (USA Today's Joan Biskupic provides the detail.)
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I am retired. I had three oral arguments in the U.S. Supreme Court, and oral arguments in most of the Circuit Courts of Appeals.
Oral arguments serve lots of purposes, but I think that lawyers often miss one. It is to assure the judges that the underlying case is "real", that what they see on paper is not just a snow job.
In that sense, it is exactly the opposite of kabuki.
In one oral argument, i noticed then Justice Marshall leafing through the appendix and pausing at what I suspected was a telling photograph we had entered into evidence.
Sure enough when my opponent started his argument, Justice Marshall held up the appendix opened to the picture, and asked "I s there anything wrong with this picture? Is it accurate? " My opponent conceded it was. I knew we had a vote we had not anticpated. Moreover we had a court less likley to think it was getting a snow job.
Similarly, I have had judges pound me on the theory of the case I had presented. I think that they wanted to satisfy themselves that what I had presented was a reasonable theory that would hold up if adopted, or at least would have to be directly addressed if they ruled against me. They wanted to know that it was something more than glib.
Again, I think this the opposite of kabuki.
Sure, on occasion the lawyer is just a conduit for a continued debate among the judges, but I think it the exception.
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