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Oral Argument in the Supreme
Court: The Felt Necessities of the Time
by Stephen M. Shapiro[1]
Oral Argument In The Age Of Discovery
It is interesting to return, through review of the historical
record, to the early years of Supreme Court advocacy.
One must begin by envisioning a Supreme Court that changed
locations eight times during its first thirty years. The
Court held its first session in the Exchange Building
in New York in 1790. It then moved to Philadelphia, and
from Philadelphia to Washington, where it heard argument
in several different places, including Long's Tavern,
the Bell Tavern, and a basement room of the Capitol which
one observer described as "little better than a dungeon."[2]
Lawyers appearing before the Court in its early years
had no substantial procedural guidance. The Court's first
rule of practice stated only that it would "consider
the practice of the Court of King's Bench and of Chancery,
in England, as affording outlines for the practice of
this Court"--curious standards for a Court intended
to be predominantly an appellate tribunal.[3] The Court
did, of course, have a trial function as well. And it
conducted jury trials on at least three occasions.[4]
In the days of Chief Justice Marshall, the Court sat for
as little as six weeks and handed down only a third of
the number of opinions rendered by the modern Court. But
the justices worked at a rapid pace, announcing many decisions
within a few days of argument and seldom more than two
or three weeks later.[5] Those same justices also were
obliged to "ride circuit," some travelling by
horseback, stagecoach, and riverboat as many as 10,000
miles per year.[6]
The Supreme Court bar, both when the Court sat in Philadelphia
and in Washington, was a club-like group of local counsel
who handled cases in the Court upon referral from counsel
elsewhere.[7] Many of these advocates also were members
of Congress and therefore were present in Washington when
the Supreme Court sat.[8] These Congressmen, of course,
represented private litigants and not the federal government.[9]
In contrast to their rather bleak surroundings, the Court's
first advocates cut charismatic figures. It was the golden
age of American Oratory, and lawyers such as Daniel Webster
and William Pinkney delivered their arguments without
any limitation on time. Arguments in the Supreme Court
sometimes lasted as long as ten days.[10]
Advocates like Webster and Pinkney directed their arguments
as much to the public as to the bench. The spectacle surrounding
their debates often attracted crowds to the courtroom
where members of high society sat in attendance. As Charles
Warren relates, "the social season of Washington
began with the opening of the Supreme Court term."[11]
Webster once stopped in the middle of a phrase to start
his argument anew upon spotting a group of late-arriving
ladies.[12] Pinkney was even more affected by the presence
of ladies of fashion. In one case, devoid of any dramatic
interest, he adopted "his tragical tone in discussing
the construction of an Act of Congress." Upon closing
his speech in a solemn manner, he took his seat, reporting
with a smile: "that will do for the ladies."[13]
On at least two occasions, the emotional rhetoric of counsel
brought tears to the eyes of the Great Chief Justice.
[14]
The Supreme Court entertained these orations not only
without limitation upon time but also without interruption.
Quoting from a contemporary observer, Charles Warren describes
the relationship between counsel and the Court as follows:
"Counsel are heard in silence for hours, without
being stopped or interrupted. . . . The Judges of the
Court say nothing." [15] "It mattered not by
whom the Court was addressed--Mr. Pinkney, Mr. Wirt, .
. . [or] Mr. Webster--received the same and no greater
apparent attention than any second or third rate lawyer
arguing his first case."[16]
With this seemingly limitless indulgence from the bench,
with no questioning to confine counsel to the bounds of
the record or jurisdictional limits,[17] and with little
precedent that could be viewed as binding, the oral arguments
of counsel assumed an exuberant originality and variety.[18]
To the extent that English common law held sway, counsel
looked to the precedents of Lord Mansfield and his 'joyous
acceptance of the idea that judges are supposed to make
law --the more law the better."[19] The Supreme Court
and its bar pursued their joint venture in search of American
law through far-ranging exercises in logic and excursions
through legal history and political theory. This adventurous
spirit evidenced itself in the words of Justice Story
in Swift v. Tyson, 16 Peters (41 U.S.) 1, 19(1842): "The
law respecting negotiable instruments may be truly declared
in the language of Cicero, adopted by Lord Mansfield to
be in great measure, not the law of a single country only
let alone the law of a single state--], but of the commercial
world."
The Orations of Daniel Webster
We catch a fascinating glimpse of Supreme Court argument
in the age of Marshall and Taney from the recorded orations
of Daniel Webster, who argued some 200 cases before the
Court and participated in many of the major constitutional
debates of the day. Webster adopted an eclectic style
in Court. He gilded his arguments with classical allusions
and rhetorical flourishes.[20] But he also supported them
solidly with logic, history, and precedent. Webster typically
stated his case concisely, summarized the issues, gave
his view of the issues, brushed aside his opponent's theory,
and then returned to his own contentions.[21] It is reported
that Webster sketched his arguments in skeletal form,
relying on his ability to make extemporaneous presentations
in Court.[22]
Webster's style of argument appears from the records of
his speech in Trustees of Dartmouth College v. Woodward,
4 Wheaton (17 U.S.) 518 (1819). In that 4-hour argument,
Webster challenged a New Hampshire statute which altered
the charter and governance of his Alma Mater. Despite
the limitation of the Supreme Court's jurisdiction on
writ of error to federal constitutional issues, Webster
argued that the New Hampshire statute infringed both state
and federal constitutions. After briefly stating the case
and the constitutional questions, he presented an argument
woven from a multitude of separate strands, including
the following: invocation of English tradition,[23] citation
of English common law,[24] textual analysis of the provisions
of the Constitutions,[25] logical reasoning,[26]extended
quotation from legal treatises,[27] reference to common
understanding in the United States,[28] citation of lower
court decisions in America,[29] citation of past Supreme
Court decisions,[30] reference to Roman law,[31] recollection
of abusive practices of English monarchs,[32] reference
to the Federalist papers,[33] prediction of grave dangers
to society from acceptance of the lower court's decision,[34]
emotional appeals to sympathy,[35] interjection of fiery
rhetoric,[36] and recital of a famous peroration:
It is Sir, as I have said, a small college. And yet there
are those who love it. . . Sir, I know not how others
may feel, but, for myself, and when I see my Alma Mater
surrounded, like Caesar in the Senate--House, by those
who are reiterating stab upon stab, I would not, for this
right hand, have her turn to me, and say, Et tu quoque
mi filii! And thou too, my son![37]
If Webster showed great freedom in choosing among
a multitude of different arguments, the Court showed still
greater freedom. The opinion of the Court announced by Chief
Justice Marshall ruled in favor of Webster's clients without
citation to a single authority. Chief Justice Marshall proceeded,
as was his custom in constitutional cases, as if the problem
was one of pure logic. He adopted premises which he said
were incontrovertible, and then reasoned from them to the
conclusions that he wished to prove.[38]
Rising Caseloads and the Curtailment of Oratory
While the spectacular arguments of advocates such as Webster
and Pinkney were stimulating to both the public and the
bench,[39] the tradition of unlimited argument placed a
growing strain on the justices. Attendance at lengthy oral
arguments without any relief from circuit-riding duty became
even more burdensome as the Supreme Court's appellate docket
expanded in the middle of the nineteenth century. To accommodate
these new cases, the length of the Supreme Court's term
rose from 43 days in 1825 to 99 days by 1845.[40] The number
of cases on the Court's docket rose from 98 in 1810 to 253
by 1850, and most of those cases were subject to the Court's
obligatory jurisdiction.[41]
Under these mounting case-load pressures, the justices understandably
grew impatient. According to John Marshall's biographer,
Senator Beveridge, Marshall complained of simple boredom,
quipping that the "acme of judicial distinction"
consists in "the ability to look a lawyer straight
in the eyes for two hours and not hear a damned word he
says " [42] Story also found the arguments excessively
prolix and tedious."[43]
Marshall's successor, Chief Justice Roger Taney, complained
of long arguments and long speeches, "which of course
must combine much reflection and still more irrelevant matter."[44]
Off the bench, Story exhorted members of the bar to curtail
their oral presentations,[45] but "in the Supreme Court
not the slightest control was exercised or even claimed."[46]
Taney believed that curtailment would run counter to the
tradition of oratory that still characterized public functions
in American government.[47]
Ultimately, however, the Court exercised "self help"
through its control over practice before it.[48] In 1849,
over the dissent of two justices, the Supreme Court adopted
its Rule 53, whereby it ordered that no counsel should be
permitted to speak for more than two hours without special
leave of Court.[49] Simultaneously, the Court required counsel
to submit in advance a printed abstract of points and authorities.[50]
This procedural innovation did not drain oral argument of
eloquence, as the presentation in the Dred Scott case demonstrated.[51]
Nor did long arguments entirely disappear. For example,
in Ex parte McCardle, Wallace (74 U.S.) 506, 514 (1868),
the Court heard arguments extending over four days which
encompassed a total of twelve hours--all, apparently, without
question or interruption from the bench.[52]
The Court did, however, exercise firm control over argument
time in most cases.[53] In addition, after the Civil War
there is evidence that the Court began to closely question
counsel during argument. In the words of former Attorney
General Garland, who appeared before the Court frequently
after the Civil War:
Very often I have seen lawyers high up in their profession,
but not used to the ways and manners of this court in
this respect, frightened, so to speak, out of their wits
into forgetfulness of the entire case, when suddenly pulled
up by the court to know this or that before they had time
to tell anything of it, and when they were getting ready
to tell it. This is probably due, to a great extent, to
the heretofore over-choked and charged condition of the
business of the court.[54]
While Garland opposed excessive questioning, he clearly
believed that the new practice served a vital purpose: "this
sort of colloquy with the judges and lawyers is the shortest
and best way to reach the very heart of the case."[55]
Garland also confirms that, in the period following the
Civil War, the Court strictly enforced the two-hour time
limit in most cases.[56]
Garland further remarked that in his time there was some
diminution in attention paid to counsel 's arguments.
Particularly during the lunch hour, he reported, "we
do find some of the judges unavoidably 'napping, napping,
only this and nothing more.'"[57] The justices also
left the bench in the midst of argument for refreshment:
"Behind their seats, where persons are passing to and
fro, a sort of ad interim or pro tempore restaurant is in
progress, and counsel is arguing in front and hears the
rattle of dishes, knives and forks. . . ."[58]
Following the turn of the century, the Court's steadily-increasing
workload placed new pressures on it to limit argument. According
to Charles Butler, a former Reporter of Decisions of the
Supreme Court, Justice Holmes, among others, "was all
for cutting the time down."[59] In addition, the practice
of questioning counsel acquired new vigor. Some justices
began interrogation of counsel at "the very threshold
of his argument."[60]
When Justice White became Chief Justice in 1910, he instituted
the so-called "summary docket" to which cases
of lesser difficulty were relegated. Only thirty minutes
per side were allotted for argument of cases on the summary
docket.[61] In order to further confine the time devoted
to argument in insubstantial cases, the Court adopted the
practice of announcing, after hearing argument from the
appellant, that it would not hear from the appellee. Although
this announcement may have deflated the ego of counsel for
the appellee--who wished to present argument-that impression
was a transitory one, for it signalled that he had just
won his case.[62]
In face of its heavy workload, the Supreme Court successfully
urged Congress to pass the Judiciary Act of 1925, which
converted most cases into certiorari cases subject to discretionary
review.[63] The Court's revised rules, adopted that same
year, limited the amount of time available for argument
to "one hour on each side." Cases on the "summary
docket" received only one-half hour per side.[64]
Chief Justice Hughes explained that "this restriction
is due to the crowded calendar of the Court." He added,
however, that curtailment of argument would not detract
from substance: "The progress of civilization is but
little reflected in the processes of argumentation and a
vast amount of time is unavoidably wasted in the Supreme
Court in listening to futile discussion . . ."[65]
The Chief Justice also explained that "the judges of
the Supreme Court are quite free in addressing questions
to counsel during argument. . . From the standpoint of the
bench, the desirability of questions is quite obvious as
the judges are not there to listen to speeches but to decide
the case."[66]
During the tenure of Chief Justice Hughes, the Court favored
questions designed "to bring out the weak points of
an argument."[67] Hughes, according to Justice Frankfurter,
knew just as much, if not more, about the case than counsel,
and it was not uncommon to hear him state the case, argue
both sides of it, and then indicate his opinion in subtle
fashion, all through a series of genial questions from the
bench. He also held a firm rein on the length of argument.
"IIA]s counsel opened his mouth, he would be clocked.
And come the end of the allotted time, he would inform counsel
courteously but nonetheless firmly that it was time to sit
down. It has been reported that on one occasion that he
called time on a leader of the New York Bar in the middle
of the word 'if.' "[68]
Justice Frankfurter proved a true disciple of Chief Justice
Hughes in this respect. It is reported that in one case
alone, he propounded 93 questions during oral argument.[69]
This prompted one advocate who frequently appeared before
the Court to comment that "[c]ontemporary argument
is closer in format to the quiz programs on television than
to the magnificent speeches of a hundred years ago."[70]
Oral argument in the Supreme Court reached its present form
as a result of the 1970 rules revisions which reduced the
length of argument to one-half hour per side.[71] The Court
today hears approximately 160 hours of argument per term
and only occasionally grants additional time to any litigant.
Questioning from the bench varies from case to case. In
my own experience, the colloquy has ranged from almost no
questions to intense questioning throughout the entire thirty-minute
period. In the latter situation, which is not uncommon,
counsel cannot give a prepared presentation at all unless
affirmative points are incorporated in answers to questions
from the bench.
The Court has thus evolved in its nearly two-hundred year
history from a tribunal which entertains unlimited argument
with no questions from the bench, to a tribunal which permits
only one-half hour of argument per side with intense questioning
from the bench.[72]
Reasons for Curtailment of Argument
At first blush, it may appear surprising that the same Supreme
Court, deciding cases of equal importance to the Nation
throughout its two hundred -year history, would adopt such
fundamentally different procedures for resolving the issues
that come before it. A number of explanations for the change
in attitude toward oral argument can be advanced.
The traditional explanation for curtailment of argument
has been the increase in the Court's workload, and certainly
that is the predominant factor.[73] The Court today hears
argument in approximately 180 cases and processes more than
4000 applications for review every term. It would therefore
be impossible to hear counsel argue for days on end, even
if the Court were disposed to do so.
Changes in the volume of work do not, however, appear to
be the sole factor bearing on the Court's evolving attitude
toward argument. For example, during the eras of Marshall
and Taney, the justices were severely burdened with growing
circuit riding duties and frequently complained about long
orations. Yet for almost sixty years, the Court granted
counsel unlimited time. Today, by contrast, the Court is
reluctant to extend argument time beyond one-half hour per
side even in the most important cases, and will do so only
when counsel demonstrates "with specificity . . . why
the case cannot be presented within the half-hour limitation."[Rule
38.3]
It is tempting to speculate about the reasons for this difference
in attitude apart from changes in the Court's workload.
Let me focus first on the early years of the Court's history.
As previously described, Chief Justice Taney believed that
curtailment of argument would be inconsistent with oratorical
traditions of American government. In the days of Marshall
and Taney, the dual role of lawyers at the bar and in politics
made oratory as significant as legal scholarship.[74] Broad
questions of constitutional theory or commercial policy,
unilluminated by past precedents of the Supreme Court or
by declarations of Congress, invited the kind of far-ranging
exposition customary in contemporary political debate.[75]
The Court's toleration of extended argument also may have
been a consequence of the high quality and specialization
of the bar. In the days of Marshall and Taney, transportation
was difficult, and lawyers around the country referred their
cases to a small group of local counsel with special knowledge
about the Court and its proceedings. There is reason to
believe that this group provided valuable assistance to
the Court.[76] As Robert Jackson. explained, "[d]uring
its early days [the Court] had the aid of counsel who expounded
the Constitution from intimate and personal experience in
its making."[77] The justices had no library and no
law clerks, so extended presentations by capable attorneys,
gifted in the verbal arts, provided an especially important
source of information.[78]
Finally, there are indications that--despite repeated complaints--the
justices were able to use periods of long argument with
efficiency. In contrast to the present practice of hearing
twelve cases in every weekly session and issuing opinions
from one to eight months later, the justices in the era
of Chief Justice Marshall heard extended arguments in a
single case, deliberated among themselves simultaneously,
and produced their opinion in a few days. While a case was
being argued, the Court would begin its deliberations: "We
moot every question as we proceed, and my familiar conferences
at our lodgings often come to a very quick, and, I trust,
a very accurate opinion.[79] Such interim conferences were
facilitated by the fact that the justices, from 1815 to
1830, lived together in a single boardinghouse.[80] By deliberating
in this concentrated fashion during argument, the Court
was able to announce its opinions in a period of time that
was astonishingly short.[81] The Marshall Court handed down
a substantial number of opinions in major constitutional
cases in five days or less.[82]
The Court today, of course, does not have time to entertain
extended argument in any appreciable number of cases.
Moreover, even if it could, such a mode of proceeding
would not ordinarily be useful. This is true for several
reasons.
In contrast to the early days of the Supreme Court, the
Court today has abundant sources of information about the
issues which come before it. It now has ample judicial precedents,
policy prescriptions from Congress and administrative agencies,
and voluminous commentary from legal scholars. It also has
a large library and a staff of law clerks. It receives printed
briefs not only from the parties, but also, in cases of
major consequence, from amici curiae. And since, in most
cases, it defers granting review until a conflict among
the circuits has developed, it has the benefit of conflicting
opinions of lower courts to illuminate the competing considerations
of law and policy. The importance of oral argument in furnishing
information is reduced by the plenitude of relevant written
material and the assistance the Court receives in analyzing
that material.
In addition, through the modern practice of questioning
counsel, the Court is able to get the substance of argument
with greater speed. If a point is obvious or repetitious,
the Court can move the discussion ahead without loss of
time. If a point is irrelevant, it can be cut off. If weaknesses
have been obscured by a mass of detail in the briefs, the
Court can expose those weaknesses through questions and
answers. The Court can, in short, break down problems into
manageable components and focus light where it is most needed
through the questioning process. And since counsel realizes
that time is fleeting, he must come to the essential points
with dispatch.
Moreover, it is fair to say that the complexity of modern
cases limits the utility of extended oral presentation and
maximizes the need for reading. Many of the cases which
reach the Court today turn on complicated statutory codes
such as the Internal Revenue Code or the Social Security
Act. Other cases involve technological issues arising from
administrative agencies and these are surrounded by a labyrinth
of regulations. Such cases do not lend themselves to extended
oral presentation. Cases arising in our modern age of bureaucratic
regulation and sophisticated technology place a premium
on written advocacy and library research, with a lesser
role for oral exposition.
Finally, mention must be made of changes in education of
the bench and bar. In Webster's day, the curriculum included
speeches by Demosthenes and Cicero and other classical orators.
But the tradition of oratory has been on the wane in American
colleges and law schools for many years. Prominent law schools
explicitly or implicitly discourage it. A student with no
speaking ability can graduate at the top of the class. The
limited occasions for speaking in law school -class discussion
and moot court sessions--afford experience in the Socratic
method, not in oratory. In the student's most important
work in law school, the emphasis is on accurate (not stylish)
writing, and that has become the dominant medium of communication
in our appellate system. Neither the justices nor the counsel
appearing before them are likely to be at ease with high-style
oratory.
Practical Implications for Today's Supreme Court
Advocate
The trend toward reduced argument time in the Supreme Court
does not imply that argument is unimportant to the Justices.
The trend simply illustrates the aesthetic paradox that
sometimes "less is more." Thus, even those Justices.
who have been most insistent on avoiding wasteful prolongation
of argument have been equally insistent on preserving a
reasonable amount of argument time. For example, Chief Justice
Hughes once wrote that "the desirability . . . of a
full exposition by oral argument in the highest court is
not to be gainsaid," for it is "a great saving
of time of the court in the examination of extended records
and briefs, to be able more quickly to separate the wheat
from the chaff."[83]
More recently, Justice Brennan has said that "oral
argument is the absolutely indispensable ingredient of appellate
advocacy . . . [O]ften my whole notion of what a case is
about crystallizes at oral argument."[84] Justice Brennan
also has observed that "I have had too many occasions
when my judgment of a decision has turned on what happened
in oral argument, not to be terribly concerned for myself
were I to be denied oral argument."[85] Similarly,
Justice White has emphasized that oral argument is not merely
a "ritual extension of due process to the parties,"
but "remains an important step in the decision-making
process."[86] And Justice Rehnquist has observed that
"[o]ral advocacy is probably more important in the
Supreme Court of the United States than in most other appellate
courts. For unlike other appellate courts, a grant of certiorari
by the Supreme Court to review a decision of a lower court
suggests that the case at issue is a genuinely doubtful
one."[87] Thus, at least for the present, there is
little prospect of any further reduction in argument time--and
certainly no danger of its elimination.
The evolution outlined above has important implications,
nonetheless, for counsel presenting a case in the Supreme
Court today. The essential conditions of the modern argument
are rigid time limitations and unpredictable, but usually
intense, questioning from the bench. Lawyers preparing for
argument must constantly bear those conditions in mind.
The following more specific suggestions also may be of value.[88]
It is important to recognize that the Court does not desire
a speech from counsel, but expects help in resolving the
case according to its own needs. As Justice White has explained,
the justices use argument "to clarify their own thinking
and perhaps that of their colleagues. Consequently, we treat
lawyers as a resource rather than as orators who should
be heard out according to their own desires."[89] Because
the Court uses counsel as an information resource, he or
she must know the record, the issues, and the authorities
from top to bottom, so that accurate answers to questions
can be quickly provided. It is not enough to master a prepared
speech.
Counsel also must bear in mind that the amount of questioning
will be unpredictable, and that the argument must therefore
shift smoothly from a prepared presentation to a spontaneous
colloquy with the Court. This means that any prepared remarks
should expand or contract like an accordion. Counsel must
identify in advance the few important points that need to
be made, no matter how intense questioning becomes, and
be prepared to put the rest aside. As the Chief Justice
has stated, "I recommend that you not rely on a prepared
argument, because the Court is not going to let you present
it."[90] This means that counsel should in no event
attempt to stick inflexibly to a prepared script or fail
to follow the Court's lead to areas of interest.
When questioning is intensive, it is important to try to
weave key substantive ideas into answers to questions presented
by the Court. This requires flexibility Questions from the
Court should be used as stepping stones to points that need
to be explained. Every question requires an accurate and
courteous answer, but more time should be spent in dealing
with central issues than with collateral issues raised by
the bench.
The substantive points during argument should be the main,
common sense reasons why your client is entitled to win
the case. The technical side of the case can be left to
the briefs. As Justice Rehnquist has said, "the more
flesh and blood you can insert into it, as opposed to a
dry recitation of principles of law or decided cases, the
more interesting and effective that argument can be."
He also analogized the relationship between a brief and
an oral argument to the relationship between a movie and
a preview that "selects dramatic or interesting scenes
that are apt to catch the interest of the viewer and make
him want to see the entire movie."[91]
In selecting the substantive points for emphasis during
argument, one should, in the current vernacular, "go
for the jugular." That means you should pick the most
important point or two and make your most convincing argument.
As Justice Rehnquist has observed, in some cases the most
impressive point may be factual and in other cases legal.[92]
But the argument never should begin with a dubious or provocative
contention that throws a bath of cold water on the rest
of the presentation.
It also is helpful to remember, in arguing substantive legal
principles, that the Court has moved considerably beyond
the "age of discovery." The Court no longer lacks
judicial precedents, and it renders many of its decisions
in the context of Congressional prescriptions of public
policy. In debating the meaning of federal legislation,
it is important to focus on the intent of the draftsmen,
as expressed in the literal language of the provisions at
issue, their structure, and their history. As the Court
has reminded the bar, while it is "emphatically the
province and duty of the judicial department to say what
the law is," "it is equally--and emphatically--the
exclusive province of Congress . . . to formulate legislative
policies."[93]
Finally, in light of the heavy workload of the Court, it
is best to follow the example of twentieth-century advocates
such as John W. Davis -rather than the example of Webster
and Pinkney--and "sit down."[94] While the rules
grant counsel a maximum of thirty minutes, the Court admires
even greater brevity in oral presentation.
Endnotes
1 Mr. Shapiro previously served as Deputy Solicitor general
of the United States. He is currently a partner in Mayer,
Brown & Platt.
2 "The Supreme Court--Its Homes Past and Present,"
27 A.B.A. J. 283 (1941); 1 C. Warren. The Supreme Court
in United States History 459 (1937).
3 See Supreme Court Rule VII, promulgated in 1791 and reproduced
in 1 Peters (26 U.S.) vi (1928). Professor Moore observes
that this rule was "not very informational [and] it
was also misleading." 13 Moore's Federal Practice at
¶800.01 (1982 ed.).
4 See Georgia v. Brailsford, 3 Dallas (3 U.S.) 1 (1794);
Oswald v. New York, 2 Dallas (2 U.S.) 401 ((1795); Cutting
v. South Carolina, 2 Dallas (2 U.S.) 415 (1797). In Brailsford,
Chief Justice Jay charged the jury under "the good
old rule" that permitted the jury "to judge .
. . the law as well as the fact in controversy," 3
Dallas 4. The jury findings appear in "The Supreme
Court--Its Homes Past and Present," supra, 27 A.B.A.
J. at 286 n. 3.
5 G. White, "The Working Life of the Marshall Court,
1815-1835," 70 Va. L. Rev. 1, 2 (1984).
6 G. Casper & R. Posner, The Workload of the Supreme
Court 16 (1976).
7 "It was upon this bar that the profession generally
was dependent for information and ultimately for the management
of a cause in the Supreme Court." J. Goebel, I History
of the Supreme Court of the United States 666 (1971).
8 M. Baxter, Daniel Webster and the Supreme Court 31 (1966)
("After all, should not those who made laws help interpret
them?").
9 Daniel Webster, for example, served in the House, the
Senate, and the State Department while representing private
clients before the Supreme Court. Id. at 227-28.
10 J. W. Davis, "The Argument of an Appeal," 26
A.B.A. J. 895 (1940): "In the Girard will case Webster,
Horace Binney and others, for ten whole days assailed the
listening years of the Court."
11 1. C. Warren, supra, at 471. Some counsel appeared more
concerned with the festive than the professional side of
their performances. See J. Frank Marble Palace 91-92 (1958):
"In one case, argument was adjourned to give the distinguished
lawyer Luther Martin a chance to sober up."
12 S. W. Finley, "Daniel Webster Packed Them In,"
1979 Supreme Court Historical Society Yearbook at 70.
13 1. C. Warren, supra, at 473 n. 1. Pinkney's speeches
often were oratorical bouquets for the ladies. He once informed
the Justices that "he would not wary the court, by
going through a long list of cases to prove his argument,
as it would not only be fatiguing to them, but inimical
to the laws of good taste, which on the present occasion
(bowing low) he wished to obey." M. Baxter, supra,
at 28.
14 R. Strickland, "The Court and the Trail of Tears,"
1979 Supreme Court Historical Society, Yearbook 20, 26 ("Wirt's
conclusion was so emotional that Chief Justice Marshall
shed tears, something he had not done since the Dartmouth
College Case").
15 1. C. Warren, supra, at 467.
16 Id. at 470-471.
17 See M. Baxter, supra, at 34; "Neither the bench
nor bar felt as restrained by jurisdictional limits as would
its modern counterpart. In their elaborations, lawyers wandered
far beyond the record."
18 As described by Grant Gilmore, lawyers practicing in
the age of Marshall had few legal guideposts. Post-revolutionary
lawyers knew English common law, but did not know the degree
to which English precedent would govern in American Courts.
Anglophobia stemming from the Revolutionary War and the
War of 1812 constrained enthusiastic acceptance of English
precedent on a wholesale basis. "Thus, without constitutional
guidance, the courts, state and federal, set out as joint
venturers in quest of an American law." The Ages of
American Law 19-25 (1977).
19 "In this country, . . . a pure Mansfieldianism flourished:
not only were his cases regularly cited, but his lighthearted
disregard for precedent . . . became a notable feature of
our early jurisprudence, Justice Story, in particular, both
in his opinions and in his non-judicial writings, never
tired of acknowledging his indebtedness to, and his reverence
for, Lord Mansfield," Id. at 24.
20 "His speeches expertly mingled the simple with the
complex and, though generally incisive, sparkled with literary
and historical allusions. A gifted Latin scholar, he spiced
his arguments with classical quotations." M. Baxter,
supra, at 10.
21 "There was indeed a Websterian format. He commenced
in a quiet, almost monotonous tone by stating the facts
and questions of a controversy. His voice deepened and took
on organ tones as he warmed to the topic. When he reached
the crucial part of his case, his delivery attained compelling
force, sweeping aside opposing positions as superficial
or erroneous, advancing his own points--few and carefully
chosen--with emphasis that made them plain. Finally his
peroration. Wonderful moment! Here the pace slowed, but
sentiment was lofty, punctuated with some of the lawyer's
favorite Latin. At the end his auditors felt profoundly
moved and nearly as exhausted as the orator." M. Baxter,
supra, at 10.
22 A. Konefsky & A. King, II The Papers of Daniel Webster,
Ch. 2 (1983).
23 Webster's argument appears in II The Works of Daniel
Webster 452 (Little & Brown ed. 1851). See id. at 469,
arguing that the English parliament, while claiming power
to alter college charters, "has very rarely attempted
the exercise of this power."
24 Id. at 470, citing Lord Mansfield's decisions.
25 Ibid., "There are prohibitions in the constitution
and Bill of Rights . . ." Id. at 494, "The words
themselves contain no such distinction."
26 Id. at 495, "If [New Hampshire] cannot repeal [charter
provisions] altogether . . . it cannot repeal any part of
them, or impair them, or essentially alter them, without
the consent of the corporators."
27 Id. at 485, quoting at length from Kent and Bracton.
28 Id. at 477, "In New England, and perhaps throughout
the United States, eleemosynary corporations have been generally
established" by private characters under the governance
of trustees.
29 Id. at 483, citing a decision of the Supreme Court of
North Carolina.
30 Id. at 483-84.
31 Id. at 486, discussing Roman law in the time of Justinian.
32 Id. at 489-490: "Of all the attempts of James the
Second to overturn the law, and the rights of his subjects,
none was esteemed more arbitrary or tyrannical than his
attack on Magdalen College, Oxford."
33 Id. at 493, citing Madison's Federalist Paper No. 44.
34 Id. at 500, "It will be a dangerous, a most dangerous
experiment, to hold these institutions subject to the rise
and fall of popular parties--College and halls will be deserted
by all better spirits . . . . These consequences are neither
remote nor possible only. They are certain and immediate."
35 Id. at 489, "Nothing could have been less expected,
in this age, than that there should have been an attempt,
by acts of the legislature, to take away these college livings,
the inadequate but the only support of literary men who
have devoted their lives to the instruction of youth."
36 Id. at 486, "If the constitution be not altogether
wastepaper, it has restrained the power of the legislature
in these particulars."
37 M. Baxter, supra, at 84.
38 W. Lewis, "Backstage at Dartmouth College,"
1977 Supreme Court Historical Society Yearbook, 29, 36.
39 J. Frank, Marble Palace 92 (1958): "A good crowd
gave the bench a sense of self-importance: the Justices
themselves were sometimes stimulated to more active interest
by the presence of an audience."
40 Casper and Posner, supra, at 13.
41 Id. at 12.
42 4 A. Beveridge, The Life of John Marshall 83 (1929).
43 Quoted in Chief Justice Hughes, The Supreme Court of
the United States 60 (1928).
44 C. Swisher, V History of the Supreme Court of the United
States 60 (1928).
45 Id. at 278.
46 Ibid.
47 Ibid.
48 F. Frankfurter and J. Landis, The Business of the Supreme
Court of the United States 60 (1928).
49 The rule is reproduced at 21 Howard (62 U.S.) XII.
50 Ibid.
51 See III C. Warren, The Supreme Court in United States
History 9-10 (1922), describing newspaper accounts of the
"eloquent and witty" argument of counsel, which
"partook more of the character of a stump speech than
that of a jurist."
52 C. Fairman, VI History of the Supreme Court of the United
States 451, 456 (1974).
53 See III C. Warren, supra, citing the complaint of observers
that argument in the Dred Scott case was "too brief,"
counsel being limited "to one hour and a quarter,"
Id. at 9.
54 A. Garland, Experience in the United States Supreme Court
46-47 (1898).
55 Id. at 50.
56 Id. at 48-49. Garland voiced no objection to the two-hour
limitation, but observed whimsically that "[w]hile
I have not heard of any lawyers dying under this limitation
upon their speaking, yet I have known some to grown melancholy
and sicken under it. . . ." Id. at 49.
57 Id. at 62.
58 Id. at 62-63.
59 C. Butler, A Century at the Bar of the Supreme Court
of the United States 86-87 (1942 ed.).
60 John w. Davis, "The Argument of an Appeal."
26 A.B.A. J. 895, 898 (1940). In one such instance, Chief
Justice White "was heard to moan 'I want to hear the
argument.' 'So do I, damn him,' growled his neighbor, Justice
Holmes."
61 C. Butler, supra, at 87.
62 Id. at 87-88.
63 43 Stat. 936 (1925). The background of this statute and
its effect on the Court's workload are discussed in Chapter
1 of R. Stern, E. Gressman, and S. Shapiro, Supreme Court
Practice (6th edition 1986).
64 The Court's 1925 rules revisions appear in 266 U.S. 653,
673-674.
65 The Supreme Court of the United States 61-62 (1928).
66 Ibid.
67 Justice Felix Frankfurter, "The 'Administrative
Side' of Chief Justice Hughes," 63 Harv. L. Rev. 15,
16-17 (1949).
68 Id. at 17.
69 J. Frank, Marble Palace, 102-105 (1958).
70 Id. at 102. Counsel in the case referred to by Mr. Frank
encountered a total of 23 questions during the entire argument.
Such intense questioning was "impiously called "the
Felix problem.'" Id. at 106. And while Garland had
seen counsel frightened into utter silence by sharp questions
(see p. 13, supra), Frank reports two instances in which
counsel "fainted in the courtroom" under heavy
questioning from the bench id. at 101).
71 See 398 U.S. 1009, 1058 (1970). Oral argument under the
one-half hour rule is discussed in S. Shapiro, "Oral
Argument in the Supreme Court of the United States,"
33 Cath. U. L. Rev. 525 (1984).
72 In 1980, the Court curtailed written argument by limiting
the page length of briefs and other filings. See 445 U.S.
983 (1980).
73 See R. Stern, E. Gressman, and S. Shapiro. Supreme Court
Practice Ch. 1 (6th Edition 1986), for a review of the growth
in the Court's caseload.
74 See M. Baxter, supra, at 33-34, "Accustomed to interminable
speeches in Congress, these political war horses could not
charge their pace when they went to Court. But in both instances
they exemplified the standards of their times, for this
was the golden age of American oratory. As college students,
they had attended rhetoric classes, read the Greek and Latin
orations, joined debating societies . . . . In the Supreme
Court, the attorneys were fulfilling the expectations of
everyone."
75 "[T]hese years were a formative era of constitutional
law, to some extent of other branches of law as well, and
counsel enjoyed the freedom of pioneers. Penetrating the
unmapped wilderness of social and legal problems, they defined
issues, uncovered precedents, suggested promising rules
of decision. The Court, and the public too, was willing
for them to do so. A dual status as lawyers and politicians
strengthened their ability to cut paths through the legal
thickets of their time." M. Baxter, supra, at 35. See
also G. White, "The Working Life of The Marshall Court,
1815-1835," 70 Va. L. Rev. 1, 48-52 (1984). For another
historical view, see R. Pound, The Spirit of the Common
Law 124-25 (1921) (likening long arguments to "combat"
by attrition and "frontier modes of thought").
76 "In comparison with counsel in other periods these
men were peculiarly well prepared for such a function. Many,
like Webster, had political experience applicable to questions
before the bench. Many more contributed from their study
of scarce or obscure reports and commentaries," M.
Baxter, supra, at 27.
77 Proceedings in commemoration of the 150th Anniversary
of the Supreme Court, H. R. Doc. No. 649, 76th Cong., 3d
Sess. 12 (1940).
78 G. White, supra, 70 Va. L. Rev. I.
79 Justice Joseph Story, quoted by Chief Justice Hughes
in The Supreme Court of the United States 61 (1928).
80 G. White, supra, 70 Va. L. Rev. at 6 ("The boardinghouse
became the nerve center of their existence in Washington").
81 Id. at 30.
82 Id. at 30-31. Professor White indicates that the Justices
also may have been "using time during oral argument
to prepare the skeleton of opinions." Id. at 32.
83 Chief Justice Hughes, The Supreme Court of the United
States 62-63 (1928).
84 Harvard Law School Occasional Pamphlet Number Nine at
22-23 (1967).
85 Remarks at the Third Circuit Judicial Conference, reproduced
at 67 F.R.D. 195, 154 (1975).
86 Justice White, "The Work of the Supreme Court: A
Nuts and Bolts Description, " October 1982 New York
State Bar Journal 346, 383.
87 Justice Rehnquist, "Oral Advocacy, A Disappearing
Art," 35 Mercer L. Rev. 1015, 1027 (1984).
88 For a detailed discussion of oral argument technique,
see S. Shapiro, "Oral Argument in the Supreme Court
of the United States," 33 Catholic Univ. L. Rev. (1984).
89 Justice White, supra, October 1982 New York State Bar
Journal at 383.
90 Chief Justice Burger, "Conference on Supreme Court
Advocacy," 33 Catholic U. L. Rev. 525, 527 (1984).
91 Justice Rehnquist, supra, 35 Mercer L. Rev. at 1024-25.
92 Id. at 1025-27. The Court will not ordinarily reconsider
factual questions decided in the same way by two lower courts
(Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967),
but it may well disagree about the legal significance of
those facts (Illinois v. Gates, 462 U.S. 213, 225-46 (1983).
93 TVA v. Hill, 437 U.S. 153, 172, 194 (1978). In other
words, the advocate must approach the Court with recognition
that, while it has an enormously important role in elucidating
statutory policy, it has no disposition to revise federal
legislation or prescribe statutory policy of its own.
94 Davis' famous Tenth Commandment of oral argument was
peremptory: "Sit down." "The Argument of
an Appeal," supra, 26 A.B.A. J. at 898.
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