You have filed your Supreme Court merits briefs, booked your D.C. flight and hotel, and Google-mapped drug stores near the Supreme Court Building [for that last minute bottle of Pepto, of course]. It’s time for oral argument.
Does It Really Matter?
Eugene Gressman, a leading Supreme Court practice authority, has this to say about oral argument:
To resolve such [substantial and difficult] questions, the Court needs the fullest possible assistance from counsel, both in their briefs and their oral arguments. Counsel are expected to engage in a dialogue with the Justices that will serve to clarify the facts and the issues in the case and that will make a decisive impression as to the merits of the dispute. Only the lawyer who is fully prepared, articulate, and at ease can expect to fulfill the role assigned to him or her in this great process. Supreme Court Practice, Ch. 14.1 (9th ed. 2007).
On the other hand, when the famously-taciturn Justice Clarence Thomas lectured in my 1L Con Law class, he told us that he makes his decisions from the briefs, and does not really take that much from oral argument.
But in the end, for the Supreme Court mertis-stage litigator, the question of, “Does it really matter,” is actually pretty meaningless. Oral argument is part of the merits evaluation process, by rule and by tradition. You’ve written your best brief, so you might as well prepare to deliver a killer final stroke.
Preparing for Supreme Court Merits Argument
The Court offers a helpful guide for attorneys. It describes the process of oral argument, and also gives interesting nuts-and-bolts advice for preparation.
Attorneys should begin preparing for oral argument weeks ahead of time. Review—and re-review—all of the relevant case materials, including all of the briefing. Many litigants set up moot court practice sessions to try to anticipate the questioning from the bench, and to get a feel for the rhythym of oral argument. Keep in mind that oral argument can challenge your body and emotions, as well as your intellect, so try to stay rested, fed, and healthy in the days leading up to your session.
On the day of argument, attorneys must report to the Lawyer’s Lounge between 9:00 and 9:15 a.m. for morning sessions, and between 12:00 and 12:15 p.m. for the rare afternoon session. Wear conservative business dress, in traditional dark colors. The use of cell phones, computers, cameras, or any other electronic device is not permitted in the Lawyer’s Lounge, and these items may not be brought into the Courtroom. Recording anywhere in the Supreme Court Building is prohibited (thus, the iconic press conferences on the outside steps of the building).
On the counsel table, attorneys will find a handcrafted, working quill pen, a gift from the Court as a souvenir of the event. No kidding. Please, take the pen.
Because recording devices are not permitted in the building, you will not be able to get a photograph to commemorate the event. But if you like, the Court can connect you with a courtroom artist so that you can commission a drawing of your triumph.
When you step to the podium for thirty of the most exhilarating minutes of your career, it will just be you, your notes, and nine of the sharpest minds in the law. But when the session concludes, and the justices return to their chambers to consider your argument, the briefs they reference should be prepared to a standard of quality worthy of your effort. Give Cockle Legal Briefs a call to schedule your Supreme Court merits-stage brief.