« “Free the Law” | Main | Throwback Thursday: Christopher Fairman's "Fuck" »

Wednesday, November 04, 2015

Top Ten Thoughts on Visiting the U.S. Supreme Court Today to Hear Shapiro v. McManus (and One Bonus Prediction On Its Outcome!)

I had the good fortune and privilege of attending oral arguments this morning at the U.S. Supreme Court.  I was there in particular to listen to the argument in Shapiro v. McManus, an election law dispute that asks whether a single district judge can dismiss a redistricting case instead of referring it to a three-judge district court. (Howard previewed the case here). 

I co-authored (with Michael Solimine of U. of Cincinnati) an amicus brief in the case, which stemmed from two of my articles on election law and procedure.  It was fun to sit in on the oral argument given that I knew so much about the case. 

 The last time I visited the Court, I was in law school, so I had a much different experience this time as a lawyer and law professor.  Here are some observations:

1.  I was glad someone had told me to bring a quarter!  Cell phones and other electronic devices are not allowed in the courtroom, and there are lockers down the hallway for such items.  But the lockers cost 25 cents.  Thankfully I was prepared! 

2.  The formalities of visiting the Court did not seem as…formal as the first time I went.  I expected the decorum, nobility, and seriousness of the Court’s proceedings.  Maybe this is simply because I now have much more experience going to courtrooms!

3.  Once the justices take the bench, the Chief Justice admits new members to the Supreme Court bar.  I had looked into doing this, but as my bar license is currently inactive, I am not eligible.  Still, this process, with the Chief Justice formally admitting each person, is surely a nice highlight of these lawyers’ careers, and if I ever go back to active status it is something I would like to do. 

4.  The written transcript of oral argument really does not do justice, in my opinion, to the dynamics of the courtroom.  In my view, virtually all of the justices seemed to agree with the petitioner and were quite skeptical of the state’s argument in Shapiro, yet I do not think the cold transcript adequately reflects this reality.  Facial expressions, the tone of the questioning, and the nonverbal reactions all paint a much different picture of what was going on in the courtroom. 

5.  My last point makes me an even bigger proponent of allowing video recording of the Court’s oral arguments.  There is no justifiable reason to shroud the Court in secrecy by allowing only written transcripts and audio recordings of the proceedings.  When Justice Alito visited the University of Kentucky a few weeks ago, he remarked that allowing cameras in the courtroom would lead lawyers to perform for the cameras and not the justices, and that late-night TV would make a mockery of the arguments.  This is wholly unpersuasive.  The lawyers want to win their case, not play to a TV audience, and in any event they can make their pitch to the media afterward if they want to; late-night TV already spoofs oral argument.  Being there in person – or seeing the video of the proceeding – would help Americans understand this branch of government.  The Court champions transparency (through disclosure) as the best cure for the problems of campaign financing – why won’t it apply that same standard of transparency to itself?  In an era in which only 30% of Americans vote, shouldn’t we do all we can to encourage civic education?

6.  Recognizing when to end your argument and sit down – when you have more time left – is probably one of the hardest things a lawyer must do.  Michael Kimberly, arguing for the petitioner, did this beautifully.  It was clear from the tenor of the argument that most of the justices agreed with his points.  In fact, several, like Justice Scalia, seemed to want to go further and rule that a single judge may never dismiss a redistricting case without sending it to a three-judge court, a position Mr. Kimberly did not advocate (he agreed that he would win if the Court went that route but noted that it did not have to reach that far in this case, as he was advocating for a “wholly insubstantial” standard instead, meaning that a single judge may dismiss the case only if the claim is "wholly insubstantial").  When, after about 19 minutes of mostly-friendly questioning, it seemed clear that he had answered the justices questions to their satisfaction, he chose to cede the remainder of his time.   At that point, there was nothing left to say, and going further could have only done damage to his case.  Yet many lawyers would not be able to resist the temptation to press further points or try to shore up the argument even more.  Sitting down is often the better strategy, difficult as that might be. 

7.  It is never a good idea to make new arguments at oral argument that were not addressed in the briefs. Justice Scalia questioned Mr. Sullivan, Maryland’s lawyer, about why he did not make an argument about certain prior cases in his brief, and Mr. Sullivan first stammered before retorting “Well, you know, I’m trying to provide value now in addition to what we had in the brief.” (Mr. Sullivan’s stammering is not reflected in the oral argument transcript.)  Some observers suggested that Mr. Sullivan gamely parried the question.  I disagree.  With all due respect, I think Mr. Sullivan hurt his case with a comment that seemed almost glib.  Again, this was my initial impression while sitting in the courtroom.  And perhaps there was no better way for Mr. Sullivan to respond.  Still, this exchange shows the immense importance of strong briefing.  It’s also probably a bad idea to bring up “extraterrestrials” unless you are sure that all justices know to what you are referring—this reference by Mr. Sullivan ate up several minutes as Justice Scalia questioned what he meant.

8.  It is always better to make your best argument up front and not rely on the justices to do it for you – something I try to teach our moot court students.  About midway through Maryland’s argument, Justice Breyer finally highlighted what should have been the state’s key point: requiring a three-judge court will increase the Supreme Court’s mandatory review docket, as these decisions skip the court of appeals stage and are directly appealable to the Court.  Chief Justice Roberts then picked up on this point.  It would have been much better for Mr. Sullivan to lead off with this idea from the outset. 

9.  All lawyers should go visit the Court at some point.  It truly is an invaluable experience.

10.  I love D.C.  You just never know what – or who – you are going to see.  As I left the Court and walked by the U.S. Capitol, I happened to run into a press conference featuring Senator (and presidential candidate) Bernie Sanders.  I then stumbled upon a monument to Senator Robert Taft (William Howard Taft’s son), which I did not know existed.  And I had about 30 minutes to kill, so I went to Ford’s Theater, something I never did during my 9 years living in D.C. but something I have wanted to do even more  after recently reading the book Manhunt.  Next time you are in D.C. try to carve out a little bit of time to do something interesting – the city is a great place to explore! 

11.  And here is a bonus thought: although it is never a good idea to read the tea leaves, I predict a reversal in Shapiro, quite likely 9-0.

Posted by Josh Douglas on November 4, 2015 at 05:40 PM in Civil Procedure, Law and Politics | Permalink

Comments

Professor - Thanks very much--for the great amicus brief and summary above. As a petitioner and 1L, it was thrilling to be in the courtroom. This week our Civ Pro class has been covering the difference between the Rule 11 and Rule 8 standards--very much in line with points made by several Justices. I don't see much chance of a flood of new cases if the Justices opt to make Rule 11 the standard for substantiality, as that is analogous to the Court's current precedents here--which are followed by all Circuits except the Fourth (mine!). It is only the Fourth that is using Rule 8 as the substantiality standard, so it is only the Fourth Circuit states that could provide a new flood.

Posted by: Steve Shapiro | Nov 5, 2015 1:46:36 PM

I was at argument too. I thought Maryland's lawyer's joke about added value went over well; he got a huge laugh from Thomas, which was fun to see. There's really no good answer to that question, besides apologizing; the cases he was talking about aren't new. On your prediction, I saw unanimity too, until Alito started suggesting that partisan gerrymandering claims are all pretty frivolous and that three-judge courts accentuate appearances of partisanship, while Roberts and Breyer seemed genuinely worried about being forced to hear a slew of substantial but doomed partisan gerrymandering cases. I wouldn't be surprised if Thomas shared similar views, and I'm not sure if Kennedy would enjoy rewriting his concurring opinion in Vieth several times. Of course, they could avoid these difficulties by summarily affirming in cases that do present substantial questions and just saying they don't, but that could become more difficult if they write an opinion in this case saying that substantial just means non-frivolous. A 5-4 decision affirming the Fourth Circuit, then, wouldn't shock me, though I think reversals by various margins (8-1 with Alito in dissent, 7-2 with Alito and Roberts in dissent, 6-3 with those two and Breyer in dissent) are more likely scenarios.

Posted by: Asher Steinberg | Nov 5, 2015 10:18:26 AM

The comments to this entry are closed.