My Own Words by Ruth Bader Ginsburg & Mary Hartnett & Wendy W. Williams

Author:Ruth Bader Ginsburg & Mary Hartnett & Wendy W. Williams
Language: eng
Format: epub
Publisher: Simon & Schuster

2. The Day in Court

The U.S. Supreme Court, as I have just said, labors long in selecting the cases it will take up for review but, unlike courts of appeals where litigants arrive as of right, the Court spends little time deciding which cases will be set for oral argument (all are, save for the dozen or fewer cases resolved summarily on the basis of the petitions for review and briefs in opposition). Nor do we debate the length of argument time. Cases calendared for argument, no matter how complex, routinely get exactly one half hour per side. When argument time is running out, there is a five-minute-warning light colored white, then a red light. When the red light appears on the lectern, time is up—lawyer and Justice alike must stop talking.

A keen observer of the Court, New York Times journalist Anthony Lewis, wrote this description of the current day in Court:

Oral argument does not play the part in the work of the Supreme Court that it did in the nineteenth century, when Daniel Webster [and other Bar luminaries] would argue a case for days. . . . The modern Supreme Court limits argument severely . . . to half an hour [per side]. But argument still has an important function. It is the one chance the Justices have to . . . grapple directly with the lawyers who represent the clashing interests before them. It is also a rare opportunity for the public to gain insights into the minds of those who actually make the decisions. More than any other officials in Washington, the Justices still do their own work, assisted only by a handful of young law clerks. To observe them as they question counsel in the courtroom is to see an extraordinarily open process, unaffected, human. In a capital puffed up with bureaucracy and public relations, the Court seems old-fashioned, small, personal. For the lawyers, oral argument is a direct opportunity to reach those nine minds—with an idea, a phrase, a fact. Not many cases are won at argument, but [a case] can be lost if a lawyer is unable or unwilling to answer a Justice’s question [honestly and persuasively].

I agree in full with Anthony Lewis’ observation, and could not better describe the role of oral argument.

In the most essential way, oral argument at the Supreme Court is what it generally is in other U.S. appellate tribunals, both federal and state. Oral argument is an occasion not for grand speechmaking, but for a conversation about the case, a dialogue or discussion between knowledgeable counsel and judges who have done their homework, a “hot bench,” as appellate advocates say—judges who have read first and foremost the decision we are reviewing, any statutes in point, next, relevant portions of the record, and other judicial decisions bearing on the case. Then we turn to the almost always long briefs filed by the parties and, depending upon their quality, the briefs of supporting, so-called friends of the court, amici curiae.

Some lawyers,

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