A while back we had a post dealing with humor at the Supreme Court during oral arguments. It was a subject that caught our attention, and it appears that it caught the attention of others because we now learn that there has been — what else? — a study of judicial expressions and the frequency of laughter during oral arguments “up there.” See Adam Liptak, A Most Inquisitive Court? No Argument There, October 8, 2013, at p. A14. Click here to get the numbers on who out-talked and out-hee-hawed whom — something that may be of interest to true SCOTUS freaks, but something that paints an unflattering image of the court.
The problem is that in some ways oral argument is sort of like the human vermiform appendix: It’s part of the human body but serves no discernible function. As the Justices tell us in moments of candor, oral argument performs a similar non-function. Cases are decided on judicial predilections and on the briefing, not on the theatrical performances that oral arguments have increasingly become.
“We don’t talk about cases before the argument,” said the Chief Justice. “When we get out on the bench it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.” Translation: What the Justices thus do is steal the precious, limited time allocated to lawyers to make their pitch to the court, in order to communicate with each other, and bring their fellow justices up to speed. But this is something they could just as easily, or more easily do in conference or in private conversations or memos. Justice Elena Kagan makes no bones about that. Quoth her Lordship: “Oral argument questions are often directed more to a colleague than to the lawyer.” It can be what she characterized another time as “a little bit of the justices talking to each other with some helpless person standing at the podium who you are talking through.” Got it? It turns out that your function when you argue “up there,” you poor schmuck, is not to enlighten their Lordships who may not know much about the law that is pertinent to the issues at hand, but to act as a dummy so the better informed Lordships can pretend they’re talking to you, when in fact they are trying to talk to, or perhaps more accurately talk at each other. Give us a break, your Honors! Can’t you do that on your own time without stealing the poor lawyer’s time? Quoth the chief Justice, “[T]he lawyers feel cheated sometimes. . .” Yeah! They sure do when they are not permitted to do their job which is to make a presentation to the court.
The late Frederick Bernays Wiener admonished in his classic book on appellate advocacy (Briefing and Arguing Federal Appeals) that you should rejoice when the Justices ask questions because it shows that at least you haven’t rendered them comatose. Good point. But hey man, there is such a thing a too much of a good thing, and what goes on “up there” these days “is obviously a case in point.
In this atmosphere, lawyers are increasingly compelled to spend their precious argument time acting as straw men for the Justices, to say nothing of wasting time and their clients’ money in an effort to formulate a coherent oral argument that in reality they don’t get to make. Mind you, as all experienced appellate lawyers know, what the Justices want to hear takes priority. But not when what they want to hear is stuff that they should have obtained by reading the briefs. The lawyers flog their oral arguments to death before moot court panels, to be fully prepared for the real thing that may have profound consequences for their clients, and for the country at large. But what they get in the event may be only the posturings and effusions of judges who may not know and haven’t really thought about the intricacies of the case at hand, and who instead of listening to what the lawyers may say to enlighten them, babble on about whatever pops into their heads in the midst of oral argument in order to score points with their colleagues. Sheesh!
Which brings us to judicial humor. Make no mistake, we like humor, including legal and judicial humor. As the late Professor Fred Rodell put it, the law can be like a pompous fat man in a top hat that is just begging for a well-aimed snowball. But wit is a two-edged sword that is appropriate when it can be freely engaged in by both sides to the humorous exchange. Otherwise, humor engaged in by someone in a superior position, who uses his power at somebody else’s expense, when the target cannot respond in kind, is a cheap shot that has all the manliness of tearing wings off butterflies.
Anyway, oral arguments before the Supreme Court are by degrees acquiring the attributes of theatrical performances, not those of a “respectful conversation between intellectual equals,” as the ever-reliable Wiener put it. This is not good, folks; not good at all.