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Tuesday, May 8, 2012

Oral Argument and Supreme Court Deliberation

Solicitor General Donald Verrilli got generally bad reviews for his handling of oral argument in the health care cases recently before the Supreme Court. The New York Times offers some perspective:
Be that as it may, practitioners and justices say it is the rare oral argument that wins or loses a case.
In an interview with Bryan A. Garner published in 2010 in The Scribes Journal of Legal Writing, Justice Clarence Thomas was asked how often he changed his mind thanks to oral arguments.
“Almost never,” he said, adding that they may make a difference for his colleagues “in 5 or 10 percent of the cases, maybe, and I’m being generous there.”
That is as it should be, said Mr. [Miguel] Estrada, who has argued 20 cases before the Supreme Court.
“Somewhat refreshingly to our citizens,” he said, “the administration of justice has to do with the merits of the case and not entirely to do with the skill of the advocates.”
Chief Justice John G. Roberts Jr., who argued 39 cases in the Supreme Court before joining it, told students at Columbia Law School in 2008 that lawyers play a relatively minor role in that highly stylized discourse.
“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” he said. “One of the real challenges for lawyers is to get involved in that debate.”
Oral arguments are in any event far less important than the written briefs.
“Of the two components of the presentation of a case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg told Mr. Garner. “It’s what we start with; it’s what we go back to.”