The Supreme Court heard arguments in a landmark abortion case last week, just hours after considering the day before whether former President Donald J. Trump should stand trial on charges of plotting to subvert the 2020 election. , Chief Justice John G. Roberts Jr. said: We took a break to share some timely reflections on the role of oral argument in the work of the court.
He thought about the question a lot. Until joining the court in 2005, he was a leading member of the court, in which he argued 39 times. Since then, he has heard over 1,000 of his arguments. And he published research on what makes effective oral presentations possible.
“Oral arguments remain the organizing point of the entire judicial process,” he told an audience at the Georgetown University Law Center on Wednesday that included Justices Elena Kagan and Brett M. Kavanaugh.
Indeed, oral argument is when the justices begin deliberations substantively, he said.
Although some of the judges' questions are clearly serious questions aimed at establishing facts or clarifying the lawyer's position, much of the communication during arguments actually occurs between the judges.
Chief Justice Roberts said, “Because members of this court typically do not discuss the case much before oral argument, two conversations take place during oral argument: an overt conversation between the defense and the judge; “And the other is with a regular judge.” More subtle conflicts arise among judges. This is because the tone and content of our questions reveal clues about how we view the issues in the case. ”
He continued, “Arguments in oral arguments often shape the rationale as well as the outcome, because the back-and-forth discussions reveal hidden complexities and how decisions in the case at hand affect other decisions. “This is because it highlights concerns about the impact it will have,” he added.
That comes as several conservative justices argued Thursday that the lawsuit over Mr. Trump's immunity from prosecution raises abstract questions about the scope of presidential power, rather than urgent issues arising from the Jan. 6, 2021, presidential election. It was clear from the fact that he said he was looking at it. , the attack on the Capitol.
He said some things have changed since the days when Chief Justice Roberts used to argue on the court. For example, his immediate predecessor, Chief Justice William H. Rehnquist, was a relentless stickler for arguing within the then-allotted time. As Chief Justice Roberts put it, he was famous for his ability to “cut off lawyers midway through the word 'that.'”
Oral arguments seem endless these days. For example, the one about immunity lasted almost three hours. Chief Justice Roberts said this was a result of developments during the pandemic. At the time, the court initially heard arguments by telephone, with the justices asking questions one at a time in order of seniority.
“Of course, it was a dramatic change from the rough and tumble conditions in the courtroom that we are used to seeing,” he said.
When the justices returned to court in October 2021, he said: “We didn't spend a lot of time thinking about how best to integrate the new system with the old system. We just decided to do both.”
That is, the attorney answers questions in the old open-ended format, typically for 30 minutes, followed by one more question at a time, which may last as long or longer.
The occasion for the Chief Justice's remarks was the 25th anniversary of the founding of Georgetown's Supreme Court Institute. The institute arranges mock courtrooms for lawyers to try out their arguments, trying out topics and seeking advice from lawyers and law professors pretending to be judges.
Georgetown's programs are in high demand. In recent years, the institute has held moot court sessions for nearly every argument heard by the justices.
Chief Justice Roberts recalled his own experience with the program while still a lawyer. In September 1999, in the institute's third moot court session, he honed his defense of a provision of the Hawaii Constitution in a case called Rice v. Cayetano, he said.
During the actual argument, he said he was questioned by six judges. “Out of those six Inquisitors, I got exactly zero votes,” he said. He lost 7-2.
Chief Justice Roberts said he had recently done some research. “I had some time last week, so I listened to the discussion,” he said.
The loss still hurt. But what surprised him was the crampedness of the ship his predecessor was piloting.
“The audio recording of Rice vs. Cayetano lasts exactly one hour, one minute, 11 seconds,” he said, a little wistfully. “This time included the time for filing the case, for the three defense attorneys to take the podium, and for the court to adjourn for the day.”
