As one can tell from the description of Webster’s oration in Dartmouth College, oral argument in the early days of the Supreme Court resembled nothing so much as entertainment. Charismatic oral advocates like Pinkney and Webster attracted large crowds and turned the Supreme Court into a social scene. A prominent legal historian has noted, “In the days before radio and television, the public appreciated a good trial and a good courtroom speech.”23 In the words of another historian, “the social season of Washington began with the opening of the Supreme Court term.”24
One Supreme Court Justice wrote in 1812 that “[s]carcely a day passes in Court in which parties of ladies do not occasionally come in and hear, for a while, the arguments of learned counsel.”25 Webster reportedly stopped mid-sentence during an oral argument to accommodate a group of ladies who were just entering the courtroom.26 Pinkney, meanwhile, is alleged to have ended one presentation by taking his seat and remarking with a grin: “that will do for the ladies.”27
ORAL ADVOCATES TODAY ARE far more restrained than they were in Webster and Pinkney’s time. No doubt the audiences are somewhat more staid as well. Indeed, if Webster were somehow able to view an oral argument at today’s Court, there is a good chance he would barely recognize the event. During his era, oral argument often took hours, if not days. Indeed, the argument in Dartmouth College lasted three days, the argument in Gibbons v. Ogden lasted five days, and the argument in McCulloch v. Maryland lasted an incredible nine days. The Justices did not intervene with questions for counsel, and in those days there were few precedents to discuss. Freed of such constraints, advocates had more room to inject originality, emotion, and stylistic oratory.
Quantity, however, was not quality. Chief Justice Marshall purportedly once said that the “acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.”28 This statement is apocryphal at best, but if it were true, it would explain why the Supreme Court eventually eliminated the practice of unlimited time for oral argument. The Court limited argument time to two hours per side in 1848, one hour per side in 1925, and finally thirty minutes per side in 1970—a practice that continues to this day.29
The prospect of time limits generated substantial debate. Some Justices opposed curtailing argument time. Chief Justice Roger Taney, for instance, worried that time limits would undercut the great tradition of oratory at the heart of American government and customary in contemporary political debates.30 When the Court first passed an official Supreme Court rule limiting argument time to two hours, two Justices—James Moore Wayne and Levi Woodbury—publicly dissented. The Court’s rising caseload, however, led to mounting pressures to curtail oral arguments that ultimately prevailed. With that change, the flamboyance of Pinkney and the days-long oratory of Webster ended. But the importance of oral arguments did not diminish.
Augustus Hill Garland, who served as Attorney General during the Cleveland administration, remembered the day that he was admitted as a young attorney to practice before the Supreme Court: “[A]s I stood up before the court and took the attorney’s oath, my vision became disturbed and the judges all appeared to be, at least, twice the size they were, and more than double in number, and the surroundings generally appeared magnified in like proportion.”31 On that day, Garland listened to oral argument in two cases and remarked that the experience was “a feast not often spread before a young man struggling at the dim threshold of his profession.”32
Garland went on to practice before the Supreme Court himself, once he got some experience under his belt. But his practice was interrupted by the most contentious time in our country’s history—the Civil War. When he returned to Washington at the end of the conflict, the cases he had brought to the Court’s attention shortly before hostilities began were still pending. He wanted to continue representing his clients, but there was a problem: In 1865, attorneys practicing in the United States courts were required to take an oath that they had not voluntarily supported any authority hostile to the United States. Under the Test Oath Act, any lawyer who had not been loyal to the North could not practice in the United States courts.33
Garland fought for his right to practice law before the Court. In December 1866, the Court declared the Test Oath Act unconstitutional and Garland was able to represent his clients in the cases that were pending. Garland won those cases for his clients, but the real victory for Garland—and for the Supreme Court—was more important than a handful of cases.
In one sense, Augustus Garland was very different from other talented oral advocates. He was not only a lawyer who argued in front of the Court; he had experienced the power of the Supreme Court firsthand as the beneficiary of its judgment. Garland’s contribution to the Court, moreover, went beyond substantive legal matters. Besides his advocacy, he also published several books on Supreme Court practice.
Garland’s familiarity with the Court led him to make several recommendations for the improvement of the practice of law. At the time, the Court had no page limits on briefs, and so attorneys took the chance to cram every last possible argument they could into the paperwork they filed with the Court. As Garland explained, “Not infrequently we see, not briefs, but long essays, even books in cases, drawing immensely upon the time of the court to wade through them.”34 However fulfilling those immense masterpieces may have been to the advocates who wrote them, they did little to help the Court focus its attention on the important issues in the case. More troubling, these voluminous briefs were filed a mere six days before argument. This left opponents three days to fashion a reply; as you can imagine, the usefulness of those briefs to the Court was limited at best.35
TODAY THE COURT HAS imposed word limits on briefs. Petitions for certiorari may not exceed 9,000 words, while the parties’ briefs in cases scheduled for oral argument may not exceed 15,000 words.36 Thus, not only does the clock run while advocates speak, but they must marshal their best arguments in their briefs well in advance of argument. (A party’s opening brief is often submitted three months in advance of the argument.) This practice has served to hone and focus oral argument on the most important issues. It allows Justices to mull over the questions presented and prepare lines of inquiry that clarify and condense the issues in the case.
The increasing relevance of briefs has not rendered oral argument superfluous. By focusing attention on a few important issues, a good brief may sometimes lead to a great oral argument. For instance, Justice Robert H. Jackson was a gifted oral advocate when he served as Solicitor General from 1938 to 1940. Indeed, some say that Jackson had the best command of language of any Justice who has ever served on the Court. This from a Justice who never went to law school! The formidable Jackson was crucially aware of the importance of his performance as an oral advocate: “Over the years the time allotted for hearing has been shortened, but its importance has not diminished. The significance of the trend is that the shorter the time, the more precious is each minute.”37
Theatrical presentations featuring soaring rhetoric simply do not occur before the modern Supreme Court. Such displays are actively discouraged. The Guide for Counsel that the Clerk of the Supreme Court issues to advocates contains the following advice for newcomers: “The Supreme Court is not a jury. A trial lawyer tries to persuade with facts and emotion. At this Court, counsel should try to persuade the Court by arguing legal theories.”38
Reflecting the modern view of the purpose of oral argument, Justice Ruth Bader Ginsburg has noted, “Oral argument is an occasion not for grand speechmaking, but for an exchange of ideas about the case, a dialogue or discussion between knowledgeable counsel and judges who have done their homework.…”39
None of this is to say that oral arguments are boring. The arguments are engrossing to the lawyers, the parties, and the Justices. But modern oral arguments usually have rather limited appeal to the broader public, because the Court’s modern practice has homed in on the legal, rather than the emotional, aspects of a case.
>
PERHAPS NO VIGNETTE BETTER captures the change in oral argument style than the showdown that occurred in the cases collectively known as Brown v. Board of Education. The case out of South Carolina featured John W. Davis arguing on behalf of a segregated school district against Thurgood Marshall arguing on behalf of the National Association for the Advancement of Colored People.
John Davis is often mentioned in the same breath as Webster as one of the most talented oral advocates to appear before the Court. Indeed, when Davis served as Solicitor General from 1913 to 1918, Chief Justice Charles Evans Hughes said that it was nothing less than “an intellectual treat” to hear Davis argue.40 Justice Joseph Rucker Lamar went one step further and commented that Davis’s persuasive argument style sometimes caused the Justices to stop posing queries. “John W. Davis has such a perfect flow of language,” Justice Lamar said, “that we don’t ask questions when we should.”41
When Thurgood Marshall attended law school at Howard University, he would go to the Supreme Court to hear Davis argue. It would be difficult to exaggerate the esteem that Marshall felt for Davis. “I learned most of my stuff from him,” Marshall said.42 Marshall, who argued and won many cases before the Court, said of Davis: “He was a great advocate, the greatest.”43 “Every time John Davis argued,” Marshall said, “I’d ask myself, ‘Will I ever, ever …?’ and every time I had to answer, ‘No. Never.’ ”44
With respect to their styles of presentation, Davis and Marshall were in marked contrast. Mark Tushnet, a professor at Harvard Law School, has described this difference: “Davis’s oral arguments fit the public image of what oral advocacy could be. They were organized according to a rigid logic, had well-formed paragraphs that flowed easily into each other, and included the flowery eloquence characteristic of early twentieth century oratory.”45 Tushnet, who served as a law clerk to Marshall when he later became a Supreme Court Justice, noted that Marshall possessed a very different style of argumentation than Davis. “Marshall was able to capture the essence of his position in a phrase or two that established the common sense morality of his cause,” Tushnet wrote, “but he did not hammer at that point. His style was almost conversational. When presenting the most far-reaching claims, Marshall’s manner suggested that he and the Justices ought to talk about the problems the Justices might have, so that he and they could work them out as sensible people should.”46
In the desegregation argument itself, which would be Davis’s last before the Court, this stylistic contrast was on full display. “Mr. Davis was quite emotional,” Chief Justice Earl Warren recollected. “In fact, he seemed to me to break down a few times during the hearing.”47 And Thurgood Marshall said that Davis’s cheeks were wet with tears as he returned to his seat following the conclusion of his case.
This cartoon was drawn by Herbert Block (“Herblock”) and inscribed to Chief Justice Earl Warren “To Chief Justice Warren / With affection and highest admiration / from Herb Block,” in 1954, after the Brown v. Board decision. (Photograph Credit 7.2)
There is no case more important to this country’s history than Brown v. Board of Education, of course, because it rejected the Plessy doctrine of “separate but equal” and promised the integration of black people, who had been treated as less than full citizens. But a smaller part of Brown’s legacy, one that has not received much attention, is the manner in which it illustrates the changing conception of what constitutes effective oral argument. Where Davis’s lofty eloquence and emotional appeals once caused him to be regarded as the finest advocate of his time, Marshall’s understated method of answering questions with succinct answers proved to be the path of the future.
The Supreme Court bench at the time of oral argument in Grutter v. Bollinger. (Photograph Credit 7.3)
AS THE STYLE OF ORAL advocacy has changed over time, it is hardly surprising that the style of questioning has also changed. Indeed, during arguments early in the Supreme Court’s history, there were often no questions from the bench. In 1824, one newspaper correspondent described the Supreme Court as “not only one of the most dignified and enlightened tribunals in the world, but one of the most patient. Counsel are heard in silence for hours, without being stopped or interrupted.”48
While I like to believe that the Court has retained both its dignity and its enlightenment, its reputation for patience is on shakier footing. Today, it is unusual for counsel to speak for more than a couple of minutes without being asked a question. Today’s oral advocates must be skilled in navigating a barrage of questions, for they are likely to be peppered with them from the get-go.
In 1940, John Davis gave a famous address on oral argument to the New York Bar Association. In the speech, he handed down “Ten Commandments” to oral advocates:
1. Change places, in your imagination of course, with the Court.
2. State first the nature of the case and briefly its prior history.
3. State the facts.
4. State next the applicable rules of law on which you rely.
5. Always “go for the jugular vein.”
6. Rejoice when the Court asks questions.
7. Read sparingly and only from necessity.
8. Avoid personalities.
9. Know your record from cover to cover.
10. Sit down.49
Of particular value is Davis’s Sixth Commandment: “Rejoice when the Court asks questions.” As Davis put it, “If the question does nothing more it gives you the assurance that the court is not comatose and that you have awakened at least a vestigial interest.”50
Davis hit on an important point. If Justices do not frequently ask questions of the counsel before them, it is difficult to understand how the purpose of oral argument is distinct from the written briefs that lawyers submit ahead of argument. Oral argument is, among other things, an opportunity to press the advocates on points that the Justices regard as particularly difficult and requiring further elaboration. Oral argument is also an opportunity for counsel to respond to the Justices’ concerns and explain why ruling in a client’s favor is the most appropriate course of action. When the nine members of the Court gather for oral argument, it provides a chance for Justices to hear one another’s concerns and views. This process is sometimes described as Justices having a conversation with one another, with the assistance of counsel.
Not only do Justices ask more questions, but the kinds of questions they pose have changed over time. E. Barrett Prettyman Jr., who was a law clerk at the Supreme Court during the 1950s, commented on the emergence of this trend: “There was a time, not many years ago, when a lawyer could feel reasonably confident as he approached oral argument in the United States Supreme Court if he had thoroughly absorbed the record in his case and had obtained a working knowledge of all relevant cases. No longer. Today, an advocate must, more than ever before, prepare himself for a stream of hypothetical questions touching not only on his own case but on a variety of unrelated facts and situations.”51 In the half century since Prettyman commented upon the increase in hypothetical questions, such questions have only increased.
This increase may be partly attributable to the number of Justices who were previously on law school faculties. Justices Ginsburg, Breyer, Scalia, and Kagan previously worked as full-time law professors. As Justice Ginsburg notes, “that breed is addicted to asking ‘What if …,’ or ‘Suppose that.…’ ”52
The rapid-fire questioning of oral argument can be overwhelming to advocates. In a 1944 case, Hazel-Atlas Glass Co. v. Hartford-Empire Co., a lawyer fainted mid-argument. The case concerned the power of a court of appeals, when a successful litigant has committed a fraud on the court, to vacate its own judgment. The fraud allegations were supported by various affidavits and refuted by counter-affidavits. In the midst of discussing one particular affidavit, Justice William O. Douglas demanded of the oral advocate, “who drafted this affidavit?” The poor lawyer fell to the floor, hitting the table with his head in the process. His first action when he regained consciousness was to
look straight at Justice Douglas and remark that “he had.”53
MEMBERS OF THE COURT have expressed a wide range of opinions regarding the value of oral argument. On one end of the spectrum, Justice Oliver Wendell Holmes Jr. supposedly suggested to the Court’s Reporter of decisions that his view of a case was never altered by oral argument.54 On the opposite end of the spectrum, Justice William J. Brennan Jr. thought that oral argument was extremely important. “[O]ften my whole notion of what a case is about crystallizes at oral argument.… Oral argument with us is a Socratic dialogue between Justices and counsel.”55 During his stint on the U.S. Court of Appeals for the District of Columbia, Chief Justice John G. Roberts Jr. echoed Justice Brennan’s sentiment, describing oral argument as a time “when ideas that have been percolating for some time begin to crystallize.”56
For my part, I always found oral argument to be extremely helpful in shaping my views of a case. Often, I would enter oral argument with an inclination to vote in one direction or another, but I would continue to have some concerns about my final conclusion. Usually those concerns would be resolved by the end of the arguments.
People often ask me who the best oral advocate to argue before the Court was while I was on the bench. There were many talented oral advocates whom I heard, but no one presented better arguments on a more consistent basis than the current Chief Justice, John Roberts.
Roberts possessed an unusually clear and straightforward manner of presenting his arguments, even in cases that were highly technical or arcane. I understand that he refined this style by taking time to explain the gist of his cases to a person who was bright, but untrained in the law. I think that many other oral advocates would do well to take this page from Roberts’s book.
Out of Order Page 9
