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Wednesday, February 06, 2019

Oral Argument in Pyler v. Doe

One on-again, off-again project of mine is to listen to old Supreme Court arguments. The other day I listened to Plyler v. Doe. Quite fascinating for a couple of reasons.

First, the Justices were unaware of the fact that many people were here illegally for a long period of time. Several asked why the parents of the schoolchildren in Texas had not been deported promptly. They simply did not know that INS was underfunded or that there might be a de facto amnesty policy. Indeed, a couple were quite surprised to learn that INS did not act sometimes when told that a family was here illegally. Ignorance can sometimes be charming.

Second, the case was argued in the midst of Justice William Rehnquist's addiction to painkillers. (About a month after Plyler was argued, he sought treatment.) When you listen to his questions, his speech does sound odd. Sometimes a word is slurred and sometimes he struggles to find the word that he wants to use. Without knowing that he was addicted at the time, I don't think, though, that I would have reached that conclusion based solely on what can be heard.

Third, much of the advocacy was bad. The average quality of Supreme Court argument was lower back then, probably because the Court just heard more cases. One guy from Texas was clearly out of his depth, and one guy for the children was so far off point most that one of the Justices more or less made his argument for him. You still get clunkers like that today, but less often.

Posted by Gerard Magliocca on February 6, 2019 at 01:39 PM | Permalink


I hate it when people ask me questions like I'm some sort of expert, because I'm not, but textualism is not really a school of constitutional interpretive thought at all; it's a school of statutory interpretive thought. There have been (Hugo Black) and are (perhaps Nicholas Rosenkranz) some people who are interested or mostly interested in the meaning of constitutional text in a vacuum, sans inquiry into extra-textual evidence of original understanding or even inquiry into what words in the Constitution meant when they were actually written (though the latter isn't, even, something that textualists do with statutes). But I don't think there's a critical mass of constitutional textualists, whatever that would even mean.

Statutory text, however, has become the dominant factor in the Court's statutory interpretation, to a degree that couldn't have been imagined in the 70s or 80s, so oral arguments about statutes are quite different from what they used to be like. For example, a huge genre of questions at oral argument today is the hypothetical about a phrase that's supposed to share the same grammar or key words as the part of the statute the Court's interpreting, but concerns something entirely different. I've never seen one of those in an old oral argument, and if they were asked it probably happened very rarely. For many Justices of that era, the idea that you could learn something from analyzing a phrase that had the same grammar as the statute they were interpreting, but that was about something entirely different and presumably had different purposes, would have seemed rather odd. Today, almost the entire Court bandies these sorts of hypotheticals around.

Posted by: Asher Steinberg | Feb 8, 2019 5:01:32 PM


Is textualism why Lawrence (and Obergefell) won against Texas, when Hardwick lost? If Hardwick had just argued for a textualist reading of the substantive due process clause would he have been as successful as Lawrence?

Posted by: French | Feb 7, 2019 10:06:32 PM

No, because originalism is not the law (but see William Baude, "Is Originalism Our Law?"), but textualism, which is the law, has immensely changed how statutory cases are argued at the Court, and statutory cases are most of the cases the Court hears.

Posted by: Asher Steinberg | Feb 7, 2019 6:24:34 PM

"The average quality of Supreme Court argument was lower back then, probably because the Court just heard more cases."

Did originalism increase the quality of argument? Or just change its form and function?

Posted by: Gorsickofthis | Feb 6, 2019 6:10:47 PM

Awww, my joke doesn't work so well with these reversed comment settings

Posted by: Michael Risch | Feb 6, 2019 3:38:36 PM

Counsel: Take these broken wings, and learn to fly again, and learn to live so free

Posted by: Michael Risch | Feb 6, 2019 3:32:09 PM

I think there simply wasn't a real Supreme Court bar in those days. Here's the beginning of respondent's argument in Califano v. Sanders, a case about the difficult and important question of whether the APA was a grant of federal subject-matter jurisdiction independent of 1331. Respondent argued that it was:

Mr. Chief Justice, and may it please the court.

I would like at the outset to request leave to file reply or a response to a reply brief that was filed by the Secretary, and which was served upon me since arriving in Washington, two days ago.

Warren E. Burger

Very well, have opportunity. [This is an inexplicable single-Justice grant of an inexplicable oral motion to file a surreply brief, without any stated basis for why leave to file a surreply would be appropriate. What is going on?]


I would like to say too that in this case, let it be clear that, I do not represent any cause or any class other that the initial original plaintiff, Mr. Sanders.

And by the way, his first name is Mister so that his correct designation is Mr. Mister Sanders.

I am not here for academic exercise and as I said, I am not looking to establish any legal precedent for any reason. [Not even on the question presented?]

I am here only to represent the claim of Mr. Sanders.

Mr. Sanders, not because any constitutional claim is raised Mr. Justice Brennan, happens to be a black man, he is an illiterate black man.

The nature of his claim is that he filed a disability claim, alleging that he was disabled and that he failed however to prosecute timely his appellate rights to the District Court.

[Several more minutes describing the procedural history of the case follow.]

Posted by: Asher Steinberg | Feb 6, 2019 3:10:01 PM

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