College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2006 Section 4: Advocacy Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 4: Advocacy" (2006). Supreme Court Preview. 235. https://scholarship.law.wm.edu/preview/235 Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IV. Advocacy In This Section: "In the Roberts Court, There's More Room for Argument" p. 165 Linda Greenhouse "The Letterman Justice" p. 167 DahliaLithwick "2005-06 Supreme Court: The Advocates' View" p. 169 Tony Mauro "A Supreme Court Conversation" p. 171 Walter Dellinger "Numbers That Don't Befit the Court" p. 172 Margaretand RichardCordray "Fewer grants for next Term" p. 174 Lyle Denniston "Roberts Dips Toe Into Cert Pool" p. 175 Tony Mauro "Commentary: The Court's Caseload" p. 176 Lyle Denniston 164 "In the Roberts Court, There's More Room for Argument" The New York Times May 3, 2006 Linda Greenhouse This is the week that the Supreme Court, was on the court, he recalled, she asked the done with its regular argument sessions, first question so quickly and so predictably enters the stretch run. that there was little point in preparing an elegant opening argument. "Now you might While it is too soon for substantive get three or four minutes" without appraisals of the first year of the Roberts interruption, he said. court, it is not too soon for stylistic observations about what is clearly, in the The question, of course, is how to explain view of lawyers who have appeared there the change. Even assuming that Justice this term, a different court. O'Connor's departure in January accounts for quieter opening moments, a different "The tone has changed," Prof. Richard J. dynamic seems to prevail throughout entire Lazarus of the Georgetown University Law arguments. With justices sitting back and Center, where he runs the Supreme Court allowing colleagues to ask follow-up Institute and teaches a course on Supreme questions, and with lawyers given an actual Court advocacy, said on Tuesday. chance to answer, there is a new coherence and civility to the sessions. In common with every other Supreme Court specialist contacted for this article, Professor Has Chief Justice John G. Roberts Jr., Lazarus listed several obvious changes. himself the veteran of 39 Supreme Court "They're not stepping on each other," he arguments as a lawyer, shared with his said of the justices. "They take longer before colleagues the perspective from the other someone asks the first question. They give side of the bench, or maybe even laid down the lawyers more time to answer." some new rules? Beth S. Brinkmann, like Professor Lazarus a The latter theory is unlikely; the court's veteran of the solicitor general's office, who ethos calls for signaling rather than rule- now represents private clients before the making. To the extent that the new chief court, said of the new courtroom experience: justice is leading by example-and there is "You sit there and think, 'Whoa, isn't no doubt that he is in charge of the anyone going to ask a question?' " courtroom-he is offering a model of how to ask questions that are tightly phrased, Carter G. Phillips, one of the most active penetrating and often the last thing a lawyer current practitioners, said the change had wants to hear. been so abrupt as to be a trap for an unwary counsel. "You have to be ready now to make "Maybe it's because he has so much some kind of affirmative presentation" in the experience arguing before the court, but he opening minutes of an argument, he said. seems to be able to zero in on the weakest point in a case," said Prof. Pamela S. Karlan When former Justice Sandra Day O'Connor of Stanford Law School, where she runs the 165 Supreme Court Litigation Clinic. court's opinion holding that the state had violated the homeowner's constitutional Professor Karlan argued one case this term right to due process. and sat in on others, noticing to her surprise that justices who inadvertently stepped on In another distinction between the Roberts another justice's lines held back to allow the and Rehnquist styles, Chief Justice Roberts colleague to finish, rather than plowing is reliably said to be presiding over the ahead. justices' private after-argument conferences with a lighter hand, not watching the clock Some of the chief justice's questions are as closely and permitting more conversation. deceptively simple. "What is a tributary?" he asked the lawyers in a pair of Clean Water That might account for the changed tone of Act cases, seeking a definition that helped to the arguments, Ms. Brinkmann speculated. frame the basis of federal jurisdiction. At "If you know you'll be able to make your other times he spins hypothetical questions, point in conference, you don't have to make difficult to convey out of context; suffice it it on the bench," she said. to say that the traps in these questions are obvious, but the way to avoid them is not. The court has scheduled one final argument for the term on May 18. It is a reargument of The chief justice is a more active questioner a police search case, Hudson v. Michigan, than his predecessor, Chief Justice William that was argued shortly before Justice H. Rehnquist, and his style is quite different. Samuel A. Alito Jr. joined the court in January. It is safe to assume that without his "Rehnquist told you what he thought," Mr. participation, the court is split 4 to 4. Two Phillips said. "He wasn't struggling to figure cases in a similar posture have already been out the case. Roberts doesn't tip his hand as reargued, although not yet decided. much. He asks hard questions of both sides without communicating his own preference." Despite the disruptions of the term, the court has stayed on track, both in the numbers of As a result, Mr. Phillips said, the arguments opinions issued and new cases accepted. have become less predictive of the eventual Thirty-nine opinions have been issued so far, decisions. He said he had assumed that he typical at this point, with 35 to go. Will most won the chief justice's vote after arguing a of these come in the familiar helter-skelter case in January on the adequacy of the June rush, or does Chief Justice Roberts notice that the State of Arkansas gave to a have a trick up his sleeve to make the end of man whose house it sold for unpaid taxes. the term as orderly as the rest of it? The two letters the state sent were enough, Mr. Phillips argued, but Chief Justice Now that would really be something Roberts disagreed and last week wrote the different. 166 "The Letterman Justice" Slate Magazine December 8, 2005 Dahlia Lithwick It's time. that has just taken place at the court; a sea change that renders all the above analysis The chatter is ramping up "as it invariably almost completely moot. Sea change, thy does, about once a year "that this will be the name is John Roberts. year TV cameras will finally sail into the Supreme Court. I doubt it. But the chatter is The truth is that you cannot attend oral getting louder. The annual reports of Senate argument these days without being slapped bills that would permit the court's oral right in the nose by Roberts' youth. Not only arguments to be televised are met with is he significantly and markedly younger heated pro-and-con punditry on the subject. than almost all his colleagues, he's also Supreme Court nominee Samuel Alito's clearly a product of the Age of Letterman. opinions on the issue are suddenly in the Whereas his predecessor, the late Chief news. And the low-grade media fever that Justice William H. Rehnquist, with near- always follows several sessions of audio- impunity loomed goofy gold stripes onto the broadcast arguments has left everyone sleeves of his judicial robe and sicced his hankering for more access, more often. court marshals on unwitting spectators in inappropriate garb, the new chief is already The arguments for allowing cameras at the making it clear that such acts of deluded high court are not new "in fact I only grandeur are just not his style. Roberts has recently reheated them myself. Cameras publicly eschewed the gold bars, agreed to would open up a process that is needlessly prompt audiocasting of certain early oral and deliberately closed and secretive; they arguments this term, and, in a few short would subject the courts to the public weeks on the bench, he has also landed some scrutiny endured by the two other branches of the best one-liners of the year. of government; they would give the work of the court serious public legitimacy at a time when judges are increasingly under attack. There is, in short, no way that a man who The arguments against cameras are similarly clearly came of age watching television "a familiar: They would encourage posturing man who is doubtless as quick with the remote control as he is with the punch line and pandering by judges and lawyers; they ''can pretend not to understand would violate the justices' privacy; they that television is more entrenched in American would allow random sound bites of the life than baseball or apple pie.