"There are excuses for it. We don't talk about the cases before the argument. It's the first time to get to learn what our colleagues are thinking. We do sometimes debate each other through the advocates. Recent appointees have been more aggressive that the colleagues they have replaced. Sometimes I have to act as referee. I think we do tend to overdo it a bit. It is too much. The lawyers do feel cheated sometimes. I'm sure I'm as guilty as most."
Chief Justice John G. Roberts, Jr., Fourth Circuit Judicial Conference, June 29th
The Chief Justice of the United States, in a rare but routine public event at the end of this tumultuous term, politely acknowledged Saturday that he believes he and his colleagues on the bench ask too many questions during oral argument. "It is too much," John Roberts told a friendly audience at the Fourth Circuit Judicial Conference held at the luxurious Greenbrier resort in West Virginia. The remarks were immediately picked up by the Associated Press. The speech can be seen and heard in full here courtesy of C-SPAN.
Is this a story worthy of triggering Washington's outrage reflex? I don't think so. There are a dozen ways to react to the Chief Justice's complaints, ranging from the furious to the benign. The easy response, and certainly the most diplomatic, is to say that different justices are entitled to approach oral argument differently. Justice Clarence Thomas, famously, thinks that questions posed by the justices during oral argument (and the answers they generate from the lawyer) are so worthless in evaluating a particular case that he long ago opted out of the process. Just a few weeks ago, Justice Samuel Alito echoed a similar sentiment.
But others on the Court clearly have long disagreed. For example, more than two decades ago, Stephen Breyer, then a judge on the 1st U.S. Circuit Court of Appeals, served as my moot-court judge when I was in law school. I remember him asking us question after question and then turning to his fellow moot court judges on the bench, as if to say, "listen carefully to this answer, for it may answer some questions of your own." Years later, when I came to the Supreme Court for the first time as a legal analyst, I witnessed Justice Breyer do the very same thing. He clearly enjoys and values the exchange between judge and lawyer.
Seems to me the Chief Justice is entitled to publicly complain about a "hot bench" as much as Justices Elena Kagan or Sonia Sotomayor are entitled to make it so. But I won't be surprised if others hear in his remarks a not-so-subtle indictment of the perceived "pushiness" of those two newest members of the Court, both of whom are women and appointees of the current president. And I suspect the Chief Justice will be criticized for suggesting to lawyers who appear before his Court that one appropriate way to react to the "hot bench" is to simply clam up. Remaining mute at oral argument is not just anti-lawyer, it's anti-law.
Feminist politics and legal advocacy tactics aside, what I find most troublesome about the remarks is that they come from a man leading what is already by far the least transparent of Washington's primary institutions. We don't get to see the oral arguments. We don't get to hear the announcements of the decided cases. We don't get anywhere near the conferences which determine which cases are to be resolved on the merits or how those cases are decided on the merits. Apart from the release of their decisions, and their website, oral argument is virtually the only time the justices interact directly with the people in whose name they serve.
It is also the only time -- literally -- when the American people get to hear the voices of the justices as they engage in the public work. It is the only time to absorb in real time (if you are lucky enough to be the few to get access to the courtroom) or via delayed-audio broadcasts how the justices interact with each other and with the lawyers before them. Justices Thomas and Alito think oral argument is bunk -- because they are justices! For the rest of us, not privy to the most secret branch of government, the interchange of the oral arguments is profoundly important, even when we don't accurately interpret what we are seeing and hearing.
The nation doesn't hang on what the lawyers say during these oral arguments. The lawyers already have said it in their briefs, and will say it again on the courthouse steps as soon as they are done saying it in court. No, the nation waits and watches and listens to oral arguments because of what the justices are saying. And in a perfect world those justices would be able and willing to say a whole lot more in public than they do now. Today's bench is "hot" because more justices on it have something they want to share with the American people -- and with each other. We should be celebrating that public transparency, not lamenting it, as we seek new ways, in this age of technology, to better connect the Court with its subjects.