Amidst the raging debate over succession for Justice Antonin Scalia (1936-2016), I ask for one minute of silence. Not from the press, the Executive Office, or the campaign trail, but from the Bench. One minute of silence from the Bench. For each side in every oral argument.
I. Justice Scalia’s legacy
I come neither to praise nor to damn Justice Scalia’s substantial work as evidenced in volume after volume of his written opinions. I won’t address his politics or his religion or his persona outside of Court.
I won’t propose an answer to the boiling question whether his successor should be chosen by the current President or the next one.
But I dare say that Justice Scalia talked too much in Court. In oral arguments, he asked an average of more than 20 questions. In the 30 years of his tenure:
The Court went from asking 10 to 15 questions in 30 minutes to Justice Scalia asking 10 to 15 questions himself
So said Carter Phillips, Chair of Sidley Austin, who has handled more Supreme Court cases than any other lawyer in private practice. See Bloomberg BNA article (Feb. 18, 2016). “It was fun to watch [Scalia] torment some lawyers while coming to the rescue of others at oral argument.” Fun if you weren’t the tormented lawyer or her client.
Justice Scalia was a “pugnacious” questioner, said the Wall Street Journal (Feb. 16), with “stinging questions” for those he disrespected, ready to “mix it up” even with those he favored. He “took no prisoners.” He could be “biting” in criticizing the Nation’s highest advocate. Lawyers “dreaded” his “withering questions,” calling him a “viper” years later. Lawyers sought coaching for courage to stand up in Court: “Imagine the Justice in a bunny suit.”
“History will be kind” to Justice Scalia for his scholarship, but it “will not remember him well for his air of superiority, the sting of his rhetoric, his frequent disdain for collegiality, his exaggerated estimate of himself as a comedian and thespian.” L. Denniston, ScotusBlog (Feb. 14).
The Supreme Court is indeed a “hot bench,” as described by the Journal, “a phenomenon that Justice Scalia helped usher in.” In the most recent term, more than 100 questions were asked in each case on average. See SCOTUSblog Stat Pack for October Term 2014. That’s almost two questions—and presumably almost the same number of answers—per minute, in a one-hour hearing. Justice Scalia marked the high at an average of 22 questions per argument.
II. One minute of silence, please
I call on the President to nominate and the Senate to confirm a Scalia successor who will promise every advocate one minute of uninterrupted oral argument. Just one of the 30 minutes allotted to each side. It will be appropriate and fitting for respectful demeanor to be restored to jurist and lawyer alike. What will it cost? In the 100 cases heard by the Court each year, with two sides per case, that’s 200 minutes per year. The average American spends that much time every day in front of the TV!
Speaking of TV—to Justice Scalia’s credit he opposed TV in the High Court—I searched Google for “hot court”and the first page of hits are for “Hot Bench,” an apparently popular TV show inspired by Judge Judy and featuring three “legal heavyweights” playing judges. Why so popular? Because people “like to see judges verbally smack around litigants,” explained Judge Judy to the New York Times (March 29, 2015). “Smacking around” might be good entertainment, but it is undignified and unfitting in the U.S. Supreme Court.
Returning to the proposed precious minute of Bench silence—it won’t be wasted. Each advocate will have a minute to say what they think is most important. It could be any minute—the first or last would be the easiest to time, but anywhere in the middle would work fine. Just restart the stopwatch each time a lawyer speaks, until one uninterrupted minute elapses.
III. A few words about appellate advocacy
Based on my experience, including two years as a federal appellate law clerk, at least 90% of cases are decided on the briefs. That is, oral argument usually does not change the result.
The great challenge in advocacy is to explain what happened—what went wrong or right—in a truthful, documented story that makes sense to the decision-maker. The key, taking Lincoln the lawyer as a role model, is to “marshal facts in an orderly sequence and to interpret them in simple language until the ‘mere recital of the issues’ has the force of argument. ” R. Beem, The Abraham Lincoln School of Patent Litigation, Practical Litigator 59, 61 (May 2008), quoting F. Hill, Lincoln the Lawyer 208-09 (1906).
About 90% of questions can be anticipated. Of the surprise questions, 90% are out of left field and will not affect the outcome. That leaves 1 question (of 100) that might come out of the blue—a stray thunderbolt on a clear day—and strike down one side or the other. It happens but not often. (My numbers are wrong if 100 questions are asked in the average hearing, but you get the idea.)
The Supreme Court offers a pretty good Guide for Counsel in cases to be argued before the Court. That guide cites Justice Scalia’s book, Making Your Case, The Art of Persuading Judges (2008).
It’s a pretty good book, Justice Scalia’s, offering 115 tips on how to win on appeal. Unfortunately, it’s something like trying to learn how to swing a golf club by reading a book. (Disclaimer: I am not the Rich Beem who held off Tiger Woods to win the PGA Championship in 2002.)
There are two pretty good points in the Justice’s book that bear repeating here. One tip is to “[a]ssume a posture of respectful intellectual equality with the bench” (tip 18). This is especially good advice for counsel appearing before a Justice cut from the same cloth as Scalia. Another point is to “[c]onduct moot courts” (tip 69). The former point is not as easy as it sounds. Picture the scene of the Cowardly Lion coming before the Wizard of Oz and being told that he must bring back the broomstick of the Wicked Witch. The latter tip—the conduct of moot courts—is not practiced adequately.
Suggestion to the President and the Senate: Look for judicial demeanor as a key attribute in the next Supreme Court appointment. When you’re questioning the nominee—be like Justice Scalia—ask this: “Do you promise to do everything in your power to give every advocate one uninterrupted minute for oral argument?”
Bottom line to litigants: Pick your appellate lawyer not for grandstanding ability but for ability to narrow the issues and marshal the facts. In the courtroom, preparation, humility and courage will go farther* than cocksureness.
*Grammarians might say that “further” is a better choice of word for figurative distance; Strunk & White are not quite so restrictive; as in advocacy, I choose “audacity” and “boldness” over “irresolution.” See E.B. White’s classic introduction to Strunk & White (3rd ed. 1979).
Photo acknowledgement: The photo of the Supreme Court is from the Supreme Court Historical Society, which in turn credits the Collection of the Supreme Court and photographer Steve Petteway.