Oral argument before the U.S. Supreme Court is the most important, fascinating and visible part of the Justices’ public work on the High Bench. It represents a forum for lawyers to persuade the Court to embrace their perspective on a case and a canvass for a legal artist to produce a memorable masterpiece.
In his argument to the Court in 1818, in the landmark case of Dartmouth College v. Woodward, which involved the state’s power to fundamentally change Dartmouth’s charter, Daniel Webster closed with words that have become immortal in the annals of the Court’s history. “It is a small college ... and yet there are those who love it.” And Webster shed a tear. Contemporaries observed that many in the courtroom were in tears. Chief Justice John Marshall acknowledged that he was moved, and Webster won yet another of his many cases in the Supreme Court.
The significance of oral argument, Chief Justice Charles Evans Hughes once said, is to be found in the fact that often, “the impression that a judge has at the close of a full argument accords with the conviction which controls his final vote.” Whether oral arguments really make a difference is an open question.
Justice Oliver Wendell Holmes rarely found them helpful. He used the time on the bench to either write letters or take catnaps. Justice William O. Douglas, in contrast, believed they were influential, to the point of deciding cases. Chief Justice Earl Warren did not find them “persuasive,” while Chief Justice William Rehnquist thought they made a difference. “In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came on the bench, “Rehnquist wrote. “The change is seldom a full one-hundred-and-eighty-degree swing, and I find that it is most likely to occur in cases involving areas of law with which I am least familiar.”
For those citizens lucky enough to secure one of the 100 or so seats in the courtroom that are available to the public to hear oral argument or for those increasing numbers of Americans who listen to the arguments via network coverage, the most human, interesting and dynamic part of the process is the interaction between the attorneys and the Justices who ask many questions. Skillful lawyers trying to highlight or supplement the written briefs that they have filed in the case are under enormous pressure. They are frequently questioned sharply by the Justices and must think quickly. The Justices typically are armed with Bench Memos, prepared by their law clerks, that highlight the central facts, issues and possible questions raised by a case. The questions are posed to the lawyers, but the Justices often use oral argument to persuade their colleagues and win their support for the final vote on the disposition of a case.
Before he was appointed to the Court, Justice Antonin Scalia regarded oral argument as a “dog and pony show.” After joining the Court, however, he noted the value of the arguments. “Things can be put in perspective during oral argument in a way that they can’t in a written brief.” Justice Anthony Kennedy explained that those attending the arguments see them as a dialogue between the Justices and the attorneys, and they see the arguments as a series of dialogues. “It isn’t that. As Justice John Paul Stevens points out, “Kennedy said, “what is happening is the Court is having a conversation with itself through the intermediary of the attorney.”
Whether Justices ask many questions depends on their style. Justice Douglas asked comparatively few questions. For years, Justice Clarence Thomas asked no questions during oral argument. Others, however, such as Justice Frankfurter and Justice Antonin Scalia, who were impassioned advocates of oral argument, routinely peppered attorneys with questions. Attorneys are frequently interrupted by the Justices during their answers. John P. Frank, who clerked for Justice Hugo Black and later became one of the nation’s premiere attorneys, reported that in one case that Justices interrupted counsel 84 times during two hours of oral argument, with 93 questions attributable to Justice Frankfurter alone.
In one case, Justice Frankfurter questioned an obviously flustered attorney several times, only to see Justice Douglas intervene each time with a helpful answer. “I thought you were arguing this case,” Frankfurter said to the lawyer. “I am, but I can use all the help I can get.” Oral argument generates among attorneys great tension and anxiety. Chief Justice Rehnquist recalled an experience when he argued before the Court in his capacity as Assistant Attorney General, and said that afterward, “I was drenched in sweat.”
The Justices’ styles and approaches to oral argument vary considerably, but whether they raise questions in a soft or aggressive manner is largely a function of their personalities. Justice Scalia, for example, relished argument, the direct, candid, give-and-take, a take no prisoners approach. He conceded that was sometimes overbearing in his questioning, but explained, “It is the academic in me. I fight against it. The devil makes me do it.”
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David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.
