Oral Advocacy and the Re-emergence of a Supreme Court Bar

Abstract

Oral Advocacy and the Re-emergence of a Supreme Court Bar JOHN G. ROBERTS, JR.* Over the past generation, roughly the period since 1980, there has been a discernible pro­ fessionalization among the advocates before the Supreme Court, to the extent that one can speak ofthe emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference—whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan—the second one—forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit.1 Justice Harlan lamented what he saw as a growing tendency among the bar “to regard the oral argument as little more than a traditionally tolerated part of the appellate process,” a chore “of little importance in the decision of appeals.”2 This view, he said, was “greatly mistaken.”3 As Justice Harlan told the bar, “[Y]our oral argument on appeal is perhaps the most effective weapon you have got.”4 By the time he made his remarks to the Fourth Circuit Judicial Conference meeting in Asheville, Judge Harlan had become Justice Harlan, and his remarks included reflections on not only his time on the Court of Appeals but also a few months on the Supreme Court as well. My experience has been limited to what Article III of the Constitution refers to as an “inferior” court—surely James Madison’s fa­ bled gift for finding just the right word failed him in that instance. Oral argument before a court ofappeals and the Supreme Court differs in some significant respects. On the court of appeals, we hear arguments in panels of three and hear many more cases than the Supreme Court hears. We therefore give the parties less time for oral argument. Rather than the halfhour per side that is typical in the Supreme Court, we often budget ten or fifteen minutes a side. But at the same time, because we sit in groups of only three, we are able to be a lit­ tle more flexible, keeping counsel as long as we think they are being useful—an additional ten minutes, fifteen minutes, even a half-hour. ORAL ADVOCACY 69 “Your oral argument on ap­ peal is perhaps the most effective weapon you have got,” Justice John Marshall Harlan remarked in 1955 in an address to the judicial conference of the Fourth Circuit. Having served on the Court of Appeals for the Second Circuit and re­ cently been appointed to the U.S. Supreme Court, Harlan viewed the tendency to be­ little the value of oral argu­ ment as a mistake. We also hear argument regularly from intervenors and amici, while in the Supreme Court the only non-party that is heard from, except in rare cases, is the United States, through the Solicitor General’s Office. There is also a substantive difference be­ tween arguments before the Supreme Court and before a court of appeals. In the court of appeals, we spend quite a bit of time at argument debating and puzzling over what Supreme Court opinions mean, because we are bound by them inexorably. That is typi­ cally not a significant part of an argument in the Supreme Court. Most advocates there have found that it is not a worthwhile expenditure of their time to debate with the authors about what their opinions mean. But these distinc­ tions aside, the enterprise oforal argument and its role is really quite similar in a court of ap­ peals and the Supreme Court. My main conclusion after a year of be­ ing on the other side of the bench is that oral argument is terribly, terribly important. I feel more confident about that now than I ever did as an advocate—now, when the question “does oral argument ever matter?” does not carry the 70 JOURNAL OF SUPREME COURT HISTORY same existential angst it did when it was what I did for a living. Oral argument matters, but not just because of what the lawyers have to say. It...