America’s typical amusements—March Madness, the NBA playoffs, Major League Baseball Opening Day, the U.S. Open, the Masters—have suddenly disappeared. Just in time, though, a new Big League debuts tomorrow, offering a welcome spectacle of bare-knuckle combat, vicious competition, taunts, and trash talk.
The Ultimate Fighting Championship will return on May 9. Until then, the United States Supreme Court is the only show in town.
Starting Monday, the Court will at long last air the audio of oral arguments live. For the first time ever, the public will be able to experience oral argument as it happens. This was formerly the sole prerogative of justices, lawyers, reporters, and the few citizens who are able to gain tickets by waiting for hours (or days).
The format will be rather staid, whether one is watching on C-SPAN or listening via the radio or the internet. I have always thought a Court broadcast should be a cross between TV coverage of Wimbledon and the World Series of Poker—hushed, aristocratic-sounding announcers whispering comments on strategy while an Upshot-like needle moves back and forth, changing the predicted outcome with each question and answer.
But that’s not likely: Rather, we will probably see a graphic depicting the justice or lawyer who is speaking. Argument will begin with the traditional “cry” of the marshal, “Oyez, oyez, oyez: All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court.” Next, the chief justice will call the case, saying, “We will hear argument in [the number of the case],” then recognize the first counsel to argue. Each side is usually allotted 30 minutes for argument; this is sometimes divided between the individual parties and amici, or organizations with a strong interest in the outcome. The party that argues first—the “petitioner” or “appellant,” depending on the case—will have three minutes at the end for rebuttal.
In-person oral argument has heretofore been a mixture of Judge Judy and feeding time at the Sea World shark tank, as justices jump in and talk over one another with questions genuine or rhetorical. It has become so hard in recent years for advocates to complete a sentence that last October, Chief Justice John Roberts announced a new rule: Every advocate would be allowed two uninterrupted minutes at the beginning before the sharks could start to feed.
For the forthcoming broadcast arguments, however, the rules will be different. In a press release Tuesday, the Court announced that the two-minute allowance will remain in effect. However, afterward, the justices will question by turns: “The Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority.”
I am not sure that this will work as well as hoped; some of the justices strike me as willing to ask questions for the full 30 minutes of argument, leaving no time for anyone else. Whether Roberts will intervene in such an instance remains to be seen.
Oral argument is a curious ritual. Most of the time, it tells us (or at least me) little about the outcome of a case. Justices may seem to express views on an issue that, it later turns out, they were simply floating as a way of finding an argument’s counter-argument. And as experienced appellate lawyers know, a case is very rarely won on oral argument, however brilliantly conducted, though it can surely be lost on it.
Oral argument does reveal something about the personality and disposition of each of the justices, and about the assumptions they will carry with them into the conference room where they will decide the case. And because oral argument is as much spectacle as substance, it’s worth thinking about the players in terms of their show-business analogues. Here’s a playbill:
CHIEF JUSTICE JOHN ROBERTS: Roberts is a character familiar to anyone who watches comedy: the tight-lipped, wary authority figure who tries, usually in vain, to maintain order in a forest full of unruly creatures. Think, perhaps, of Ranger Smith on The Yogi Bear Show, or Herbert Lom as the long-suffering Commissioner Dreyfus in the Pink Panther movies. Before his confirmation, he compared himself to an umpire calling balls and strikes; among the justices, he is sometimes a referee, blowing the whistle when one of them jumps offside. During argument in the Affordable Care Act cases, Roberts ordered Justice Antonin Scalia to stop riffing on old Jack Benny routines. When Scalia continued, Roberts snapped, “That’s enough frivolity for a while.” Even Scalia got the hint. Roberts can be gracious to lawyers; his humor is dry and rarely designed to sting. But he is not a jovial presence on the bench, and he is capable of turning choleric in an instant, often when an advocate makes a favorable remark about federal bureaucrats, for whom he clearly feels contempt.
JUSTICE CLARENCE THOMAS: Thomas is the Silent Bob of the Court. But don’t mistake his reticence for disengagement. On the bench, he is typically the most active in sending pages out to fetch him volumes of case reports or other materials; he whispers constantly to his seatmate, Justice Stephen Breyer. (I assume that the Court’s meeting software will have a “private chat” function.) If Thomas does open his mouth, viewers and listeners can boast that they were virtually there on an important day—like being in the stands when Hank Aaron surpassed Babe Ruth’s all-time home-run total.
JUSTICE RUTH BADER GINSBURG: At argument, Ginsburg is a kind of cross between Tweety Bird and a ninja assassin. Listeners at home may need to strain to understand Ginsburg’s questions. Rest assured, though, that they are good ones—she knows the record, is a grand master of federal procedural rules, and has a reason for each inquiry. Ginsburg is not a bully, but she does expect an answer to her question, and if not answered carefully, a Ginsburg question can play hob with an argument.
Her most memorable bon mot of the past decade came during argument in United States v. Windsor, the successful challenge to the federal Defense of Marriage Act. Paul Clement, representing members of Congress who supported DOMA, told the Court that, under the law, states were free to recognize same-sex marriage, but the federal government had no obligation to recognize those marriages. “You are really diminishing what the state has said is marriage,” Ginsburg said. “You’re saying, ‘No, state [must have] two kinds of marriage: the full marriage, and then this sort of skim-milk marriage.’”
JUSTICE STEPHEN BREYER: Anyone familiar with children’s television will recognize Breyer at his first word; he is the human incarnation of King Friday XIII from Mister Rogers’ Neighborhood, complete with the air of authority, the elevated vocabulary, and the superb diction. Most oral arguments feature what I call the “Breyer page”—a question from Breyer that takes up a full page of the typed transcript. His questions can be baffling or charming; my favorite is from the second argument of a case called Kiobel v. Royal Dutch Petroleum, where the issue was whether corporations could be sued in American courts for human-rights violations they commit abroad. “Do you think in the 18th century if they brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, ‘Oh, it isn’t me; it’s the corporation’—do you think that they would have then said: ‘Oh, I see, it’s a corporation. Goodbye. Go home’[?]” Breyer is less interested in abstract principles, close readings of text, or notions of the “original understanding” than in workable solutions to present-day problems. In a Court that is often divided into ideological camps, Breyer isn’t a predictable liberal vote, and the Breyer question of each argument is, once a listener unpacks it, usually worth pondering.
JUSTICE SAMUEL ALITO: In the 2011 Looney Tunes Show episode “Jailbird and Jailbunny,” Daffy Duck goes into court as a prosecutor, battering Porky Pig and Bugs Bunny with statements like “Maybe you’re nervous because you’re lying!” Alito is a former federal prosecutor. During oral argument, he is capable of responding with Daffy-style rage to an answer he doesn’t like. His questions tend to be either distractions aimed at the disfavored lawyer (a go-to move is to begin bringing up state-law or procedural issues not passed on by lower courts) or subtle misstatements of the record, seeking to trap the lawyers into a damaging concession. It’s hard to counter, but it can be done: In June of last year, the Cornell professor Sheri Lynn Johnson argued for the life of Curtis Flowers, a Mississippi inmate who had been convicted six different times for the same crime (appellate courts tossed four of the convictions, and one was a mistrial; Mississippi wanted to execute him after the sixth). Alito hammered Johnson with questions moving errors from one trial to another or distorting rulings from the trial bench. Johnson patiently corrected each misstatement. Flowers is a free man today.
JUSTICE SONIA SOTOMAYOR: Sotomayor seems a lot like R2-D2, the relentlessly determined droid in the Star Wars movies. Her trademark question usually begins (insincerely) with “I’m sorry,” followed by a challenge to an advocate’s statement of fact or proposition of law. Like her frequent antagonist, Alito, she often seems to know the record and the briefs inside out. And like Alito, she may try to force a lawyer into an admission he or she will regret later. Sotomayor is the most subject to interruption by male justices. Some of this is gender-based, to be sure (male lawyers and justices talk over Ginsburg and Justice Elena Kagan as well), but some is because, well, she talks quite a lot.
JUSTICE ELENA KAGAN: If Alito is Daffy, Kagan is Justice Bugs. Like the trickster bunny, she is smart, sensitive to nuance, and impishly funny. She can be sharp in tone and is capable of metaphors as complex as Breyer’s. At a 2016 oral argument, she compared a provision of the Federal Vacancies Reform Act to a complicated lunch order:
Number one, I’ll have the house salad. Number two, I’ll have the steak. Number three, I’ll have the fruit cup. And then I tell the waiter, notwithstanding order number three, I can’t eat anything with strawberries. So on your theory, the waiter could bring me a house salad with strawberries in it, and that seems to me a quite odd interpretation of what’s a pretty clear instruction: No strawberries.
It is hazardous to predict Kagan’s actual vote from her oral-argument questions, perhaps because over time she has gained a reputation for bargaining after argument with the chief justice and, sometimes, other justices, to shape a compromise decision.
JUSTICE NEIL GORSUCH: Fans of Star Trek: The Next Generation remember Q, the omniscient, omnipotent being from another dimension who regarded mere humans with amused contempt. In the TV series, the part belonged to the actor John de Lancie. In the Supreme Court continuum, Q is played by Neil Gorsuch. Soon after he ascended to the bench, The Washington Post’s Robert Barnes called him “an active, aggressive and somewhat long-winded questioner.” He is, like Q, also capable of remarkable condescension. In October 2017, as the voting-rights lawyer Paul Smith was presenting a redistricting case, Gorsuch suggested, “Maybe we can, just for a second, talk about the arcane matter, the Constitution”—implying that his senior colleagues were ignorant or careless of the Constitution they are all sworn to interpret. Captain Jean-Luc Picard and the Enterprise crew learned to work around Q, but it’s not clear they ever came to love him.
JUSTICE BRETT KAVANAUGH: Before the Senate Judiciary Committee, Kavanaugh seemed a lot like Jack Nicholson in The Shining: angry, snarling, and vindictive. Since his confirmation, though, Kavanaugh has seemed more like Boo-Boo Bear, content to play sidekick to Chief Justice Roberts. He has his own conservative causes. He was most aggressive recently during argument in Espinoza v. Montana Department of Revenue, a challenge to the invalidation of an entire state school voucher program because Montana’s constitution forbids subsidies to go to religious purposes. Kavanaugh, a Catholic, suggested that the state constitution displayed “grotesque religious bigotry against Catholics.” He spoke 21 times in that argument—more often than any other justice except Sotomayor.
FOR THOSE KEEPING SCORE AT HOME: Try not to overread individual questions or exchanges. In close cases, I don’t think oral argument tells us what will happen. I do think, though, that the process should have been broadcast live long ago. The taxpayers, after all, pay for the stage on which the justices preen and strut. Argument is a useful introduction to how lawyers think about the Constitution, federal statutes, and the role of government. And beyond that, it is entertainment for a nation entering its second month of social distancing. It really is, for law nerds and other so-inclined individuals, what UFC cage matches are for the athletically minded—a savage competition pitting the very best appellate lawyers in America against one another in front of judges who, regardless of persuasion, are among the smartest jurists in the world.
The justices have fought for decades to keep the public from this powerful and important spectacle. Now—at least as long as the pandemic lasts—we can all watch and learn.
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