Supreme Court Advocacy in the Early Nineteenth Century

Abstract

Supreme Court Advocacy in the Early Nineteenth Century DAVID C. FREDERICK* The early nineteenth century was transformative of the Supreme Court’s practices. Yet understanding those fundamental changes requires some appreciation of practice before the Court in the late eighteenth century, and the developments in the early nineteenth century produced changes in the Court’s practices that are still felt today. In this first half-century or so of the Court’s existence, more dramatic developments and changes occurred in oral argument practice than in any other period ofthe Court’s history.1 Those changes are best understood by ref­ erence to three basic themes. One is the ef­ fect of the Court in adopting the practice of the King’s Bench in one of its earliest sets of rules. That decision started the Court down the path of extended oral arguments. A sec­ ond theme is the retrenchment from that prac­ tice, and the steady evolution toward the use of written briefs to present arguments in the case. This trend began toward the end of the Marshall Court era, which witnessed some of the most celebrated advocates and oral argu­ ments in the Court’s history. In describing oral argument practice in that period, some obser­ vations may be made about the interplay be­ tweenpolitical rhetoric andoral argument style in Supreme Court advocacy. Finally, in the Taney Court period, the Court institutionalized several important rules to limit the time allot­ ted to oral argument and to rest increasingly on written arguments in briefs. Those develop­ ments launched the modern trend ofthe Court relying on written briefs with more limited oral arguments. Late Eighteenth-Century Practice In the first year and a half of the Supreme Court’s existence, the rules of practice led to much uncertainty among practitioners.2 The Constitution had created the Court, but the Framers had left vague the contours ofits prac­ tices andprocedures. The Attorney General, as leader of the Supreme Court bar, filed a mo­ tion with the Court asking for clarification as to which procedural rules attorneys should fol­ low. On August 8, 1792, the Court responded by issuing an order advising that “this court 2 JOURNAL OF SUPREME COURT HISTORY considers] the practice ofthe courts of king’s bench, and ofchancery, in England, as afford­ ing outlines for the practice of this court; and that they will, from time to time, make such al­ terations therein as circumstances may render necessary.”3 In a way, this was a curious choice. Ini­ tially, the Court had shown a willingness to sort out procedural details through litigation.4 But that clearly proved unsatisfactory: the varieties ofprocedural questions that arose in litigation more than outpaced the Court’s ability to re­ fine the rules ofpractice through common-law methods. In adopting rules at the King’s Bench as a model, however, the Court signaled a de­ parture from what had been the apparent aim of the Judiciary Act of 1789 to place a more decidedly native stamp on legal practice in the new Nation. There, Congress had made a fed­ eral writ oferror a very different type ofinstru­ ment than the English practice.5 Perhaps the Court’s aim was simply to provide guidance. At least by following King’s Bench procedure, the bar could resort to English books that de­ scribed what practices lawyers were supposed to follow. Those instructions were fairly well encapsulated in books such as Rules, Orders and Notices, In the Court of King’s Bench from Second ofKing James I to Hilary Term the Fifteenth of King George II, published in 1742,6 or The Practick Part of the Law: Shewing the Office of An Attorney, and A Guide for Solicitors in All the Courts of Westminster, published in 1702.7 Those vol­ umes, however, while helpful in the basics, did not contain much advice about how to present a case. By longstanding tradition, advocates at the King’s Bench presented their material orally to the court. For arguments to the House ofLords, the highest tribunal in Britain, advo­ cates would even go so far as to state orally the decision of the court from which the ap­ peal was...