Thursday, March 22, 2012

Inside scoop on Supreme Court arguments -- March 22, 2012 column


Here’s an insider’s tip on how to read the oral arguments at the Supreme Court next week:

To predict the likely winner of the epic battle over the health care law, keep track of the questions. The side that gets the most questions likely will lose.

That’s not just my guess. A few years ago, an up-and-coming federal appellate court judge studied 28 Supreme Court cases and found the most-questions-asked “rule” predicted the loser in 24 of the 28 cases, an 86 percent prediction rate.

“The secret to successful advocacy,” the judge observed dryly, “is simply to get the court to ask your opponent more questions.”

Judge John G. Roberts Jr. became chief justice of the United States in 2005. His comments in a June 2004 lecture to the Supreme Court Historical Society, printed in the Journal of Supreme Court History, provide a rare glimpse of how the chief justice views oral arguments.

“Oral argument matters, but not just because of what the lawyers have to say. It is the organizing point for the entire judicial process,” he wrote.

Roberts will open three days of argument Monday on constitutional challenges to President Obama’s health care law. A ruling, which could define the Roberts Court in American history, is expected by late June.

The Supreme Court usually grants only an hour for oral argument. To devote six hours to the health care law reflects the significance of the issues. And yet most people will never see the argument. No cameras are allowed, and only a few seats are available to reporters, sketch artists and the public. The court will release audio and printed transcripts every afternoon.

If you were to get in, you might get a headache trying to follow the rapid-fire action – even if you had read the legal briefs. That’s no mean feat as more than 170 briefs have been filed, reportedly more than for any case in history.

Gone are the days when lawyers had the time to methodically lay out their well-reasoned arguments. Instead, the justices power spray attorneys with questions from the get-go.

In his lecture to the historical society, Roberts, who clerked for the late Justice William H. Rehnquist and argued 39 cases before the Supreme Court, recalled his preparations for oral arguments.

“I always worked very hard on the first sentence, trying to put in it my main point and any key facts, because I appreciated that the first sentence might well be the only complete one I got out,” he said.

Roberts did the math and found that in a typical argument in 2003, there were 91 questions.

So do the arguments matter?

“Oral argument is terribly, terribly important,” said Roberts. It’s a time “at least for me – when ideas that have been percolating for some time begin to crystallize.”

When he reads briefs, his reaction typically is not, “Well that’s a good argument” or “That’s persuasive.” Instead, he’s thinking, “Says you. Let’s see what the other side has to say.”

But, he said, the doors begin to close with oral argument. “After all, the voting is going to take place very soon after, and the luxury of skepticism will have to yield to the necessity of decision.”

It seems antiquated indeed not to allow cameras in the courtroom, but barring them could help preserve the dignity of lawyers in a sometimes overwhelming situation.

It’s not a myth that lawyers have collapsed during oral arguments; Roberts recounted several incidents.

Nearly 70 years ago, the justices were exercised about facts in a commercial fraud case, and Justice William O. Douglas demanded to know who had written one of the affidavits – “at which point the lawyer fainted dead away, hitting his head on the table on the way to the floor.”

Court was adjourned and a doctor summoned. When the argument resumed, the lawyer, bruised but unbowed, stood, looked Douglas in the eye and admitted he had written the affidavit.

Roberts ends the story there. It suggests to me, though, that in places outside the media glare, decorum prevails.

© 2012 Marsha Mercer. All rights reserved.


  1. Ms. Mercer really produces a coup with this column. This is the first time I've heard about Roberts' speech telling us how to prodict the outcome of Supreme Court cases by counting the number of questions asked - with the loser getting the most questions. If Roberts is right, Obamacare is doomed because even a casual review of the hearings these last few days leaves no doubt that Obama's side received the most questions. I can't wait until June to get the formal results.

    Ms. Mercer this is a great piece of research to find such a pertinent and interesting contribution to the current discussion - and writing it up so brilliantly. Bravo.

  2. In the above comment, prodict=predict.