In general, when the Supreme Court rules on a case how much are they affected by the effectiveness of the attorneys’ arguments? Do they even have to consider them? If the attorney argues A,B,C could the Court rule for that party but say it’s for reason D?
This is an interesting question, and I hope somebody answers it. I often read descriptions of Supreme Court cases in Slate, and I’ve often wondered how much the SC is required to pay any attention at all to what the attorneys are saying. If they find both sides presenting what appear to be largely irrelevant arguments, do they just badger the attorneys into presenting stuff they find more pertinent, or can they introduce whole new lines of argument on their own, and discuss between themselves and ultimately just leave the attorneys out of it and make a decision that leaves both sides saying “Wha?!”
I imagine that by the time a case gets to the SC, the arguments are well-known by all parties, justices included, and the case couldn’t get all the way to the top court without sufficient merit and two highly organized, coherent, and well-prepared legal teams leading the charge. But it must happen from time to time that the SC finds the arguments from both sides very weak. The accounts of SC proceedings as reported in Slate make it seem as though the justices have lots and lots of leeway when it comes to questioning and arguments, but how far does that leeway extend? In the written decision, can the justices briefly dismiss arguments from both sides and then make a judgment based on their own arguments?
I’m sure I could find the answer by Googling sufficiently, but I know there are plenty of legal drones on this board.
P.J. O’Rourke once witnessed an Supreme Court argument and wrote about it in one of his books. Basically, the majority of the facts of the case are submitted in writing for review before the arguments. The arguments are basically the summations where each side gets to present its opinion of how things should be intepreted. The justices ask questions to the lawyers; in O’Rourke’s article, the justices asked a few questions about legal issues that the lawyers had not previously raised so apparently there is quite a bit of leeway. The closest analogy I could see would be to a thesis defense with two opposing sides.
Well, it depends on how you define “arguments.” The parties’ overall arguments are hugely important in how the SC rules. But those arguments all presented in written briefs before anything happens in court.
If you’re talking about “oral arguments,” the answer to your question is “a little bit.” The justices say that oral arguments can push them to one side or the other if they’re really on the fence. But usually, they’ll base their decisions much more heavily on the briefs submitted by the parties and their supporters. Keep in mind also that a normal length of time for oral arguments is 30 minutes.
If you’re really interested, I suggest Gideon’s Trumpet by Anthony Harris. It’s a detailed account of Gideon v. Wainwright, the landmark SC case that first required attorneys be assigned to felony defendants. The book traces the case from its humble beginnings to the final result.
No, they don’t have to consider them, but the parties usually cover any and all possible arguments the justices want to see. The briefs submitted by the parties’ lawyers are often hundreds of pages long. It would be pretty rare for a justice to be unable to find the argument s/he wants to use in one of the briefs.
Like Randy Seltzer said, it’s rare, but it happens. In Erie Railroad v. Tompkins, 304 U.S. 64 (1938), the Court overruled its previous decision in Swift v. Tyson 41 U.S. 1 (1842) and established the Erie doctrine, even though neither party had argued for the overruling of Swift. The Court just saw an opportunity to rid itself of a troublesome precedent and overruled it on its own initiative.
That’s pretty much what Justice Scalia said in a Q&A session I was at.
Pretty much what everyone above has said, from my own reading. It’s the compendium of written briefs that essentially makes each side’s case for them, not the brief oral arguments. But there are two points modifying this to be made:
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One leading arguer of cases before SCOTUS (i.e., one lawyer who specializes in the sorts of cases that get taken to SCOTUS level) has said that it’s very rare to win a case by oral argument, but it’s not uncommon to lose one that way. Questions at oral argument can skewer an inherent weakness in an argument that the briefs had carefully danced around. Two examples that I think are good examples of this are the President’s counsel in U.S. v. Nixon (the Watergate tapes case) and Counsel for the State of Colorado in Romer v. Evans. In both cases the justification for acting, though buttressed by precedent and principle, boiled down to variations on, “We can do this because we’re the gummint and we said we could.” And the justices spotted this, and drew them out about it, and rejected the weak arguments supporting it.
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The value of it to counsel arguing a case is that he gets a snippet, albeit brief, of real-time one-on-one interaction with the justices whom he is supposed to be convincing of his arguments. It gives him opportunity to address something that has struck one of them as unanswered after reading the briefs, and therefore perhaps win over a justice who had previously had grounds to remain on the fence.
A follow-up question: Are the parties permitted to submit additional written arguments to the Court after the oral arguments?
For example, if the questions asked in oral arguments make it clear that some Justices are wavering on an issue, can the attorneys submit a supplemental written brief to explain that issue some more (and try to lean it in their direction)?
It would be cool if some attorney had the guts to get in front of the Supreme Court and state “May it please the Court, I have nothing to add to what’s contained in my written submission.”
I doubt it would make much of a difference in the end.
After oral argument, you can only file a supplemental brief with “leave of the Court.” Supplemental briefs are supposed to be filed to “present late authorities, newly enacted legislation, or other intervening matter that was not available in time to be incuded in a brief,” so asking leave to file a supplemental brief just to clarify or make additional argument you didn’t think to make before might not be looked upon favorably.
“gummint”?
The impression I get is that the oral arguments are just for show.
I can’t believe there is anything new brought out at that late date, with a fat file of paperwork preceding it.
I thought this was quite commonly used.
Technically speaking, the Supreme Court has no guidelines, rules, or overarching principles whatsoever. If five justices agree, they could decide a case based on politics, pique, personality, whim, or a coin toss. They wouldn’t even have to dress it up in legal language. A decision could have no supporting argument at all, just the number of justices voting on each side.
Tradition and the general sense of seriousness and rightness that the Court has always maintained means that this has never happened, to my knowledge. But unless Congress found this to be an impeachable offense, there’s nothing that anyone could do about it.
All three branches of the U.S. government are fascinating case studies in the evolution of institutions starting from expectations rather than firm directions. None of them resemble anything that the founding fathers would have recognized from their time, but the Court is perhaps the most surprising body given that the Constitution says the least about it.
I don’t think it would be cool so much as foolish. You have an opportunity to reiterate the main points of your argument in an engaging, immediate way – in person, face to face – and you’re going to direct them back to the written materials? That doesn’t seem very wise.
When they do something you approve of, they are The Government.
When they do anything else (ie 99% of the time), the are the gummint.
Another point, which I don’t think has been mentioned yet, is that oral argument is often an opportunity for justices to go to work on each other. Through their lines of questioning, they can attempt to telegraph their position or get other justices to agree with them.
Sometimes cool and foolish go together. Sort of like the school paper that says, buried in the very middle “You’re probably not reading this, Ms. Crabapple.”
This is a good point. Inexperienced advocates sometimes forget this and treat each question as hostile (like being in law school) when frequently the questioner is trying to bring out a strength instead of a weakness in order to convince another justice.
I once observed a meeting of the 7th district federal appelate court where one of the sides basically did exactly that. The opposing side went on for the duration of their alloted time, and then the court called upon this advocate and he basically said, “yep, I’ve got nothing new to add, it’s all in the written stuff.” The judges seemed fine with this and no one acted too shocked, perhaps they might even have appreciatied not having to hammer through the same repetitive argument that’s already been made in writing. Just restating an argument won’t make it a stronger one, I suppose.
In the movie, “The People vs. Larry Flynt”, Larry’s lawyer did a good amount of arguing his point. In the movie, he even seemed to have the Justices laughing at his antics, naturally, he won and now Americans can make fun of public figures while being protected by the First Amendment.