A Proposal for Improving Argument Before the United States Supreme Court

What the paper says

With rare exceptions, the U.S. Supreme Court allots thirty minutes to each side for oral argument. A review of transcripts and recordings of oral arguments confirms that the Court poses questions and makes comments with remarkable frequency. When students and lay people listen to the recordings, they may remark on the constant interruptions and view the Justices as rude interrogators. With the many questions that the Justices have and the limited time available, the advocates have little opportunity to present their arguments fully. The Justices may interrupt counsel with questions concerning the law or the relevant facts of a case. They may wish to pose hypotheticals. They may wish to present direct or indirect arguments in hopes of swaying a fellow member of the bench. With respect to these questions and hypotheticals, the Justices are asking counsel to think on their feet and may catch counsel unprepared to give a full and accurate response. This Article offers a simple solution for reducing the overload of questions at oral argument. Justices, individually or collectively, could pose written questions on facts and law to the litigants’ counsel before oral argument and expect written responses. The submitted questions might inquire about the facts of the case, about the litigant’s interpretation of the relevant law, about the response that the litigant would make to a hypothetical scenario, or about the precise holding that the litigant wishes the Court to propound. The responses should allow for more thought-out answers than oral argument can produce and might both reduce the number of questions that the Justices ask during oral * Professor of Law, Villanova University School of Law. My thanks go to Tehrim Umar, VLS 2015, and Professor Robert Hagadorn. [Vol. 42: 195, 2015] A Proposal for Improving Argument Before the United States Supreme Court PEPPERDINE LAW REVIEW 196 argument and improve the quality of the answers. The Article places this proposal in historical context by examining how Supreme Court rules on presenting argument have developed—shifting the emphasis from oral argument to written argument. After explaining the value of oral argument and the ways in which courts have tried to deal with the brevity of oral arguments, the Article illustrates the value of the proposal by closely analyzing the oral argument in Kelo v. City of New London. I. INTRODUCTION 196 II. THE HISTORY OF SUPREME COURT RULES 199 A. The Founding Era to the Civil War 200 B. Post-Civil War to the Present 206 C. Lessons from the Narrative 210 III. THE VALUE OF ORAL ARGUMENT AND THE NEED TO ENHANCE IT .... 211 A. Does Oral Argument Influence the Outcome of a Case? ........ 211 B. The Functions of Oral Argument 215 IV. HOW THE PROPOSAL WOULD HELP IN ACTUAL CASES: THE KELO EXAMPLE 219 A. The Case 220 B. The Opinion 221 C. The Oral Argument 223 1. The Petitioners’ Test 223 2. A Hypothetical 226 3. An Unexpected Question 230 4. Analysis 233 V. CONCLUSION 233