This month’s column shifts focus from the words judges use in opinions to the words they use – or don’t use – in oral argument.
I have watched with keen interest as legal commentators have launched several recent salvos aimed at oral argument questioning by the justices on the United States Supreme Court.
The most extreme comments come from The New Yorker’s Jeffrey Toobin in a February 2014 article entitled, “Clarence Thomas’s Disgraceful Silence.” It focuses on Justice Thomas’s well-known practice of not asking questions during argument. The title pretty much tells you everything you need to know about the article’s tone. Like an invective-filled appellate brief that serves primarily to explain exactly how much this lawyer detests opposing counsel – and only incidentally to make some legal points – Toobin’s adjectives swallow his argument.
Toobin suggests that oral argument primarily serves as a vehicle to give the public a “window onto the Justices’ thought processes” and to let lawyers “look these arbiters in the eye and make their case.” A justice who does not ask questions “is simply not doing his job” and is treating fellow justices with “disrespect.”
Toobin’s attack on Justice Thomas prompted a number of responses, including one from Professor Ilya Somin at George Mason University. In a post on The Volokh Conspiracy, Professor Somin responds: “Thomas has a reasonable counterargument when he suggests that the justices would do better to listen to the arguments of counsel rather than take up much of their time . . . with their own points.” Professor Somin disputes the “window on the justices’ thought processes” contention. The real window, he says, is the opinion itself.
While saying too little during argument is a sin, apparently talking too much also is bad. Or, to be more precise, talking when the only purpose is to embarrass counsel. Professor Josh Blackman at South Texas College of Law used his blog to note a recent instance in which Justice Scalia called out an advocate during argument for reading from a script at the podium. Professor Blackman pronounced this to be . . . um . . . a “[not very sportsmanlike] move.”
Sportsmanship aside, the justices themselves have addressed whether the dialogue suffers when oral argument is used primarily to transmit questions and positions to others on the court – thereby relegating counsel to the role of a cell phone tower. Chief Justice Roberts was interviewed in an October 2013 article in The New York Times discussing the intensity of questioning at oral argument. According to the article, the Chief Justice and others believe that “the justices should moderate their volubility” and let counsel utter a complete sentence once in a while.
So, let me see if I’ve got this straight. Judges shouldn’t talk too much. And they shouldn’t talk too little. And don’t be mean.
I understand the “don’t be mean” part. I’ve been on the receiving end of mean. I also appreciate that there’s a fine line between vigorous follow-up questioning by a judge and crossing the border into Bullyville. I try to avoid crossing the line by taking two or three swings at a follow up question; if I can’t get a satisfactory answer after that, I usually just give up and go silent. But I am confident that some advocates on the receiving end of those questions have felt harangued.
As for the balance between too much or too little questioning, I am not hugely worried by either extreme. The right amount of questioning is the amount that gets the panel’s questions answered. Sometimes there aren’t many questions because the panel doesn’t have many questions. Sometimes I’m concerned individually about an issue and I want to be told why I shouldn’t be worried about it. At other times I am content to listen while other panel members explore an issue with the advocate. There is nothing “disgraceful” about silence. The job is still getting done.
And I must agree with Professor Somin on one point in particular. If you want to open up a window into a court’s thinking, open up its opinions.
On at least one level, things are much simpler on a state intermediate court of appeals. Not much time is spent at argument trying to bounce questions off of lawyers to influence colleagues on a panel. We usually just talk to one another and tell each other what we think.