Oral Arguments in the Supreme Court

On my Gun Culture 2.0 blog recently I wrote about attending a talk by an attorney who had argued recently before the Supreme Court of the United States (SCOTUS).


One of the most interesting things I have done in my time in Washington, DC is to go see oral arguments in the SCOTUS. Back in 1988, when we were just kids, my friend Boaz Roth and I put on some nice clothes and got in line early to see the court in action. We nonetheless seemed to be on the border of getting in. As we inched our way forward, it was hard to tell where the cut off would be. Then the guard pointed to us and said “the two gentlemen in the suits,” and we were the last two admitted. I’m sure it was the suits.

The basic structure is that each side has 30 minutes to present their case, beginning with the plaintiff. The plaintiff has the option of reserving 5 minutes after the defense for rebuttal.

The real excitement begins as soon as each attorney faces the 9 Supreme Court Justices, and says, “Mr. Chief Justice, and may it please the court. . . ” From that point forward, at any time, any of the justices can interrupt the attorney’s presentation to ask questions. So the attorney has to try to make an argument in the midst of responding to questions — some helpful, some hostile — from 9 judges. (Or, in recent court precedings, 8 because Justice Clarence Thomas rarely asks questions.)

This can be seen in the case I wrote about, Abramski v. United States.The transcript of the oral arguments in this case can be examined here. You can also listen to an audio recording of the arguments that tracks the transcript here.

Attorney Richard Dietz, representing Abramski, was beginning his 6th sentence, 50 seconds into his opening, simply reviewing the facts of the case, when Justice Sonia Sotomayor jumped in to ask him a question. Abramski Transcript 1As Dietz was trying to answer the question, Sotomayor pressed her questioning, but then an interesting thing happened. A more sympathetic justice, Antonin Scalia, came to Dietz’s aid. Abramski Transcript 2

Dietz continued following Scalia’s save, only to draw more fire from Justice Elena Kagan and the immediately after, Justice Samuel Alito. Abramski Transcript 3And so on for 25 minutes. Despite getting 25 minutes to present his case, reserving 5 minutes for rebuttal, Dietz actually shared his time with 8 justices (all but Clarence Thomas). So, he has to continue to try to make his case while at the same time responding to persistent questioning from the justices.

A great challenge and why it is a rare honor and ability to argue cases before the Supreme Court. And why it should be a bucket list item for American citizens.

CONCLUDING ASIDE: In the talk I attended the speaker gave some interesting facts about decisions handed down in the last term (2013). Of approximately 70 cases, almost 40% were unanimous decisions by the 9 justices. Just under 30% were “split” decisions — either 6-3 or 5-4. This suggests that most of the cases decided by SCOTUS are not driven by an ideological “liberal” vs. “conservative” divide.