Marriage @ the Supreme Court: The art of oral argument

by on March 24, 2013  •  In Lawyering, Supreme Court
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As the whole world knows, the Supreme Court will hear arguments starting Tuesday morning in two gay marriage-related cases. The public will be able to hear the proceedings later the same day, and all the briefs are posted on an ABA web page in both the Prop 8 and the DoMA case. So anyone who has gone a little OCD on these cases should be able to dig into the details pretty easily. Tomorrow I will post some specific points to watch for in the Prop 8 argument, and on Tuesday, I’ll post impressions of that day’s argument plus a prep for Wednesday’s DoMA argument.

In general, though, what goes on at oral arguments in the Supreme Court?

It’s conventional wisdom among lawyers that cases are won on the briefs, and the argument seldom changes anything. So, beyond adding drama, what’s the point of the arguments?

For the lawyers, it’s pretty straightforward: try to keep the Justices focused on the points that help your side and don’t concede anything that will hurt you. If you’re the first up, which will be the defenders of the anti-gay laws in both cases, you use your opening sentences to frame the case with your strongest arguments. After that, you’ll be constantly interrupted. So pay attention to what Charles Cooper says on Tuesday at the very start of his argument, because that will be his trump card (at least as he sees the case). If you’re second up (Ted Olson on Tuesday), you might start with your prepared remarks or you might want to jump into a debate that began during your opponent’s argument, in the attempt to maximize a point that has emerged as the other guy’s weakness.

The role of the Justices is more complicated, which is why the standard caution is not to read too much into their questions. Most of the time, most of the questions are probing for the weaknesses in whichever argument is being made by either side. These queries don’t necessarily indicate how a Justice will vote. A Justice may ask the toughest questions she can think of for the party she (probably) favors, in order to clarify an issue that she knows is bothering another Justice. Occasionally, the questions become almost rhetorical and before you know it, the argument is effectively between Justice X and Justice Y. 

Is anything a safe bet? Justice Thomas won’t give anyone the satisfaction of asking a question; Justice Scalia will say something sarcastic; Justice Sotomayor will jump in with both feet. Beyond that, I’m not betting on anything.

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