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Friday, January 19, 2024

More interrupting during argument?

Is it me or do justices increasingly cut-off litigants not to ask a new question or to push back on an answer but to stop the litigants from talking anymore in response to a question. In essence, the justice saying "I've heard enough in response to the question I asked; stop talking."

It is particularly bad during the sequential/serial/round-robin stage. The Justices use the time to make speeches and arguments and lead attorneys into one-word answers  ("Don't you agree . . ."), then cut them off with a "thank you" when the attorney attempts to give a complete answer or to try to use the answer as part of her argument. This supports criticism (I cannot remember where is saw it) that appellate arguments have morphed into congressional hearings, in the worst sense. 

But I noticed it three times in the "main" arguments in Devillier v. Texas (on how to sue for just compensation for a taking)--once each from the Chief, Alito, and Gorsuch. This is more jarring, because it undercuts what the advocate is supposed to be doing. The skill in argument involves weaving answers to questions into affirmative arguments. An attorney did not only answer the justice's question, she used her answer to further her prepared argument. Stopping the attorney from completing her answer makes that impossible. In all instances, another justice jumped in with questions, so the attorney was not left hanging. But if it becomes more commonplace, it reflects a real change in what argument is supposed to be.

Posted by Howard Wasserman on January 19, 2024 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink


I don't disagree with Orin's description of how the Justices use arguments and that probably has been true for awhile. Maybe my point is that they used to at least allow the lawyers to present arguments while answering questions (whatever the point of those questions from the Justices' perspective). That pretense disappears if the justices can simply stop an attorney from talking.

Posted by: Howard Wasserman | Jan 20, 2024 4:57:47 PM

The justices can obviously decide on how they want to use oral argument, but the very term itself -- "oral argument" -- at least implies that it is an opportunity for advocates to argue their cases. If the purpose is indeed for the justices to argue among themselves, it just becomes a conference with the attorneys as props.

I've never argued a case in the Supreme Court, but I've done a fair number of oral arguments in lower courts, and I'm pretty sure I influenced at least a few judges to see things my way. That wouldn't have happened if the judges had just been speaking through me to each other.

Posted by: Steven Lubet | Jan 20, 2024 3:27:56 PM

Howard, can you say more about what argument "is supposed to be"?

I think of Supreme Court oral arguments as serving two purposes. First, those Justices who have actual questions can get them answered. But second, and usually more importantly, the Justices can use the exchanges like law professors use questioning during class — as implied arguments about what might be a better or worse solution to a problem — needed to form a majority response to the case.

I agree that oral arguments are different these days in a number of ways than they were before 2018 or so. There's more time, and no center vote who is unusually open to changing his mind. But I'm not sure I think there was a "supposed to be" answer for what advocates are supposed to be doing, other than providing answers that help them get to five.

Posted by: Orin Kerr | Jan 19, 2024 6:35:32 PM

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