“I think it’s [oral argument] unnecessary in deciding cases. [We] ask [too] many questions and I don’t think it’s helpful … we should allow the advocates to advocate.”
U.S. Supreme Court Justice Clarence Thomas (2013)
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“Usually oral argument has no effect at all, but when it is important it is very important.”
Lori Klein, California appellate attorney (now inactive)
With the U.S. Supreme Court about to begin its 2023-24 term on the traditional first Monday in October, oral arguments will be taking place, usually two or three per week, sometimes doubled up on a particular day.
The topic of oral argument has stirred more attention in recent years than in the past, primarily because of the changing protocols that occurred during COVID. The justices continued to remain in the shadows, so to speak, with any kind of broadcasting, televising or live streaming off limits.
But the public at large could listen to their oral arguments conducted remotely during the pandemic. While those sessions had, in recent years, been available for audio broadcasts at short intervals following the hearings, oral arguments during COVID were accessible by audio in real time to accommodate the public, primarily the media.
Since the pandemic has ended, the court has returned to its old ways of hearing oral arguments in its courtroom, open to the public with limited seating available, and insulated from the accessibility of any kind of audio or video real-time broadcasting. Those modifications represent the latest in the protocols in oral arguments, a feature that warrants attention as the new term gets underway.
A short but lively overview of oral argument highlights some of the unusual aspects of this practice, a judicial form of legalistic debate.
In the halcyon days of the 19th century, some of the notable attorneys who argued cases orally before the Supreme Court were “rock stars” of their day. The included former President John Quincy Adams, who years after his a one-term presidency argued the famous case involving a slave ship mutiny in which Adams convinced the court that the enslaved Africans on board should be deemed free in U.S. v. Schooner Amistad, 40 U.S. 518 (1841). The incident was memorialized in the Steven Spielberg movie “Amistad” in 1997, with Academy Award winner Anthony Hopkins playing Adams, who along with George W. Bush was the only son of a president to serve in the White House.
Adams also was one of only two presidents who argued a case before the Supreme Court. The other was Richard Nixon, who presented oral arguments a year before he was elected president in a landmark right of privacy case, Time, Inc. v. Hill, 385 U.S. 374 (1967), in which he lost a claim on behalf of a couple who were the subjects of a true account of being held hostage by criminals, which was published without their authorization in Life magazine, a leading publication of its day.
The case, individually, was argued twice, once during the 1965-66 term and held over for a second hearing the next term.
Nixon, characteristically, offered a self-pitying response to the court’s decision. That was some seven years before his entry on the high court docket as a litigant in U.S. v. Nixon, 418 U.S. 683 (1974), in which the court unanimously directed him to give up his secret White House tapes, which helped trigger his resignation as president less than two weeks later.
Nearly a century after the Amistad case, Near v. Minnesota, 418 283 U.S. 697 (1931), which arose here in Minnesota and established the First Amendment principle of “prior restraint,” featured an interesting saga of oral argument. The case was the appeal by a publisher of a muckraking anti-establishment Minneapolis publication with a hefty dose of racism and anti-Semitism that was shuttered under the Minnesota Public Nuisance law. The case was orally argued before the high court at the end of January 1930 but listed as January 30, 1931, in the decision itself. Regardless of the vagaries of when it was heard, the high court issued its landmark ruling on June 1, 1931. By a narrow 5-4 margin, it held the suppression law unconstitutional, a decision that rankled four dissenters, led by Justice Pierce Butler, Minnesota’s first justice on the high court, who viewed the state statute as appropriately curbing “abuses of the liberty of the press,” which paralleled the ruling upholding the statute on grounds of “public” morality by the Minnesota Supreme Court, 174 Minn. 457, 219 N.W. 770 (1928).
(See Perspectives “First Amendment anniversaries are ‘Near’ here” in the June 1, 2021, edition of Minnesota Lawyer.)
The case would never have made it to oral argument before the Supreme Court — or to the annals of the law — had the arch-conservative publisher of the Chicago Tribune, Colonel Robert L. McCormick, not come up at the last minute with funding for the appeal.
Some other 19th century oral argument advocates, like Quincy Adams, were dominant characters. The public would flock to hear arguments from such luminaries as Daniel Webster, a Massachusetts senator, and other high-profile political figures. The court, sitting in the old Senate chambers before its own building was erected in 1935, would listen for days on end, as in the dreadful Dred Scott case, Scott v. Sandford, 60 U.S. 393 (1857), a case that arose from Scott’s enslavement at Fort Snelling in Minnesota’s pre-territorial days, which legitimized the institution of slavery and barred any governmental interference with it, a major precipitator of the Civil War. The advocates argued for four full days before the Supreme Court issued its ruling, which was leaked to incoming President James Buchanan prior to his Inauguration. In his Inaugural address shortly before the ruling was announced, he alluded to it, hoping insouciantly that the country would “cheerfully accept the upcoming decision.” But when it came down a couple of days later, it was hardly greeted gleefully throughout the land. Its holding led former single-term, former back-bench congressman — Abraham Lincoln — to return to politics, and the rest is history.
Another case of historic proportions, challenging racial segregation in public schools, Brown v. Board of Education, 347 U.S. 43 (1954), experienced another delayed response following oral argument. The case was initially argued before the Supreme Court in 1952, but the lawyers challenging the separate-but-equal doctrine, including Thurgood Marshall on behalf of the NAACP, were summoned back to the court to re-argue the case a year later.
The second go-round preceded the Supreme Court’s unanimous decision that the separation of races in schools was inherently unequal and, therefore, unconstitutional under the Equal Protection Clause.
In more modern times, oral argument has taken on a life of its own.
One of the most telling moments in oral argument lore occurred during the hearing in a harassment retaliation civil lawsuit brought by Paula Jones against President Bill Clinton. The court rejected the president’s attempt to stay the litigation during his presidency in Clinton v. Jones, 520 U.S. 681 (1997), following an incisive and decisive question posed in an oral argument by Justice Sandra Day O’Connor to counsel for the president: She asked, hypothetically, whether a case should be suspended if a president’s spouse started a divorce. That question foreshadowed the court’s unanimous decision, written by Justice John Paul Stevens, in favor of allowing the case to proceed, which ultimately resulted in an $850,000 settlement.
Justice O’Connor’s occasional tormenter at oral argument and in written dissents, was Justice Antonin Scalia, who took center stage at many oral arguments during his 20 years on the bench from 1986 to his sudden death in 2016. That conservative jurist was prone to pepper counsel at oral argument with various questions, once so repeatedly that it prompted one of his colleagues, Justice Lewis Powell to turn to his next seat mate, Thurgood Marshall, and lament: “Do you think he knows the rest of us are here?”
Justice Marshall was fairly sparing in his remarks at oral argument, but one of his liberal successors, Stephen Breyer, was not. No slouch when it came to oral arguments, the former Harvard law professor often battled Scalia at oral argument with repartee, including numerous hypotheticals coming from his left-wing leaning, counter-balancing Scalia’s conservative views. Breyer was also known, in top professorial form, to make lengthy remarks during oral argument, eating into the time allotted to the advocates.
Speaking to the topic of time, the period allotted for oral argument at the Supreme Court depends upon the nature of the case, the number of parties, and other factors.
Some are as short as a half-hour or so, while others of greater complexity can be heard for hours, like last term’s affirmative action college admission case, Students of Fair Admissions v. President and Fellows of Harvard College, 143 S.Ct. 2141 (2023).
The federal appellate circuits generally reflect the same flexibility in their scheduling. But Minnesota state courts generally follow in more standard time periods, absent unusual circumstances. Accordingly, 35 minutes for the appellant, including a five-minute rebuttal in the Supreme Court and a 15-15-5 time framework in the Court of Appeals for appellant, respondent and rebuttal.
Another feature that has come to characterize Supreme Court oral argument is the telegraphing by the justices of their positions in their remarks and questions to be advocates. It is commonplace for court watchers and other savants to be able to predict the outcome of a case by listening or reading to post hearing audio or a transcript. This is particularly noticeable in high-profile rulings of the court, such as the Students for Fair Admissions affirmative action case and the student loan forgiveness case, Biden v. Nebraska, 143 S.Ct. 2355 (2023), reversing a decision of the 8th U.S. Circuit Court of Appeals in which the justices on both sides of the cases clearly indicated how they would decide, making it easy for seers (like this one) to accurately forecast the outcomes.
One justice who didn’t usually take up much time at oral argument is Justice Clarence Thomas. For nearly three decades, since he joined the Court in 1991, he was well known for eschewing participation in oral argument because he did not feel it was significant and, as he later explained, he wanted to give counsel a full chance to express their views without disruptions. He expressed displeasure with the internal bantering among justices that often took place at oral argument, which he likened to the “Family Feud” television game show.
Yet, after many years of silence, with only an occasional remark every decade or so, Justice Thomas opened up once the court began hearing oral arguments remotely during COVID. As the senior justice, he was given the opportunity to be the first to ask questions, and he did so with relish. He has continued to do so, though to a lesser extent, since the court has resumed its in-person-hearings.
Once sphinxlike, he has become a virtual “chatty” Clarence as his influence on the tribunal has risen. See Perspectives: “The era of Justice Thomas and Minnesota law” in the September 29, 2022, edition of Minnesota Lawyer.
It’s often said that an appeal cannot be won on oral argument, but it can be lost.
But that aphorism is not universally true.
Dispelling the former, Chief Justice William Rehnquist credited the victory for challengers to a Louisiana statute requiring the teaching of creationism in public schools if evolution is taught in Alvarado v. Aguillar, 482 U.S. 578 (1987) to the oral argument by Jay Topkis, a volunteer litigator from an elite New York Law firm. Referring to the 7-2 decision grounded on the Establishment Clause of the First Amendment, the chief later remarked that it was among the “best” he ever heard in that august forum.
But a stumbling presentation did not lead to defeat for the forces supporting George W. Bush in the historic Bush v. Gore, 531 U.S. 98 (2000) per curiam election recount case. The Supreme Court ruling terminated the Florida recount in the 2000 presidential election, handing the White House to the Texas governor despite an assistant attorney general for the state of Florida, arguing against further recount, misidentifying the jurist he was addressing and other miscues.
The lesson from this pair of cases is that a superior oral argument can help but a bad one is not necessarily fatal.
Justice Clarence Thomas before Supreme Court
Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.