Oral Argument

Oral Argument Daniel Webster, in his 1818 argument to the Court in Dartmouth College v. Woodward, which dealt with a state's power to alter Dartmouth's charter, ended with the words “It is a small college … and yet there are those who love it.” Contemporaries reported that many in the room were in tears. Chief Justice John Marshall himself was moved, and Webster won a decision in favor of the college. Before the Civil War arguments before the Court might go on for days. Today, except for rare cases of extraordinary importance, each side is limited to thirty minutes. Occasionally the Court reverses a decision summarily without any argument at all. And the chief justice is very strict about the time limits. A red light shows on the lectern after thirty minutes and the chief will notify the advocate that his time is up, sometimes in mid‐sentence.

Because every case argued to the Court has been fully briefed and the justices come to the argument with a thorough knowledge of the briefs and record, it is often said that oral argument never changes any minds and is therefore useless. This is not true. A good oral argument will never consist of a set speech—advocates, by a rule of the Court, may not read their arguments—and will generally avoid the kind of oratorical flourishes that made Court sessions a popular event in Webster's day. Rather, an able advocate will encourage questions from the bench and her skill will consist in the ability to make points as answers to questions. A skillful advocate will also discern from the justices' questions what concerns each of them may have and will use the occasion to address those particular concerns. Thus a successful oral argument is more like a compelling conversation than a lecture—this is aided by the fact that the lawyer's lectern in the Supreme Court is quite close to the bench, and the contact with the justices seems more intimate than in many other courts.

It is only in the oral argument that the lawyer must answer questions. In his brief a lawyer can avoid or try to obscure weaknesses in his case. While an opposing brief may seek to point out such evasions, it is during oral argument that there is no avoiding a direct question by one of the justices. Thus, though it is true that few cases have been won in oral argument, many have been lost. Under what can be relentless and sometimes even sadistic questioning by the justices, a quite plausible case may fall apart entirely. Thus oral argument provides a useful test of the soundness of an argument. Of great symbolic importance too is the fact that this test is one where the public may see that the justices do indeed attend to the cases before them and that no argument will prevail that is not submitted to an open challenge.

The questioning by the justices at oral argument also allows them a means of convincing, or at least arguing with, each other before their vote on a case is reached in their private conference. Such public duels, between Justices Hugo Black and Felix Frankfurter, for instance, across the person of the hapless advocate, have produced some legendary exchanges.

At times in the Court's history there has existed a small group of lawyers who specialized in arguing to the Supreme Court. Daniel Webster was perhaps the most famous advocate to appear before the Court. John W. Davis was the best known in the twentieth century. Such specialization is much less common now, and most arguments are presented by advocates who will appear before the Court only once in their lives. The result is a greater variability in the quality and helpfulness of oral argument than is warranted by the importance of the Court's business.

See also Briefs; Decision‐making Dynamics.

Bibliography

William H. Rehnquist , The Supreme Court—How It Was, How It Is (1987).
G. Edward White , The Marshall Court and Cultural Change, 1815–1835 (1988).

Charles Fried