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Tuesday, March 01, 2011

Oral argument is for the justices?

Interesting article in today's Washington Post about the way oral argument is becoming even-more dominated by justices' questions rather than attorneys' answers to those questions. One explanation is that Justices Sotomayor and Kagan are more aggressive than the justices (Souter and Stevens) they replaced. Another is the statement, originally attributed to Kagan, that oral argument is for the justices, not for the advocates:

Lawyers have their say in the briefs they file with the court, she said, and oral arguments are for the justices.

"The argument is for us to say, 'Well, yes, we've read your brief, we know what you think of the case, but here are the questions that that inspired in us,' " Kagan said, noting that the justices do not discuss a case beforehand. "So oral argument provides the first chance for you to see what your colleagues might think about a case, what's worrying them about a case, what interests them about a case."


Posted by Howard Wasserman on March 1, 2011 at 08:02 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


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This is always what the judges told us when I was an appellate attorney. They also added another way that oral argument was for the judges. It was not just to see what their colleagues might think, but also to get some human interaction. Being a judge is a very solitary life. Most of the time, it's you, the briefs, some books, and your computer. Maybe there's some interaction with the clerks, and occasionally with your colleagues, but not a whole lot. And I would think that would be even more true for U.S. Supreme Court justices who seem more isolated than their state counterparts or lower federal court justices.

I think about it as analogous to being a professor. Many of us like it when our students engage with the material and interact with us--at least in class if not in our offices or at all hours via email. We do hold class for the students, but it's partially our chance to interact with a captive audience about stuff we find really interesting.

Posted by: Marcia | Mar 3, 2011 1:33:20 PM

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