CommentaryZach Mueller, Pitt Law '12, recently attended oral arguments in the case of Humanitarian Law Project v. Holder at the US Supreme Court in Washington, DC. He shares his thoughts on the experience…
The red velvet curtain parted, and Chief Justice John Roberts emerged from the narrow opening behind the elevated bench, prepared to hear the oral arguments for each party. I instinctively closed my eyes, took a deep breath, and tried unsuccessfully to slow the pounding of my heart and the sweating of my palms. My body was reacting as if I were about to stand up and argue an important First Amendment case before the Court. In reality, I was one of many ordinary citizens there to observe the animated and often tedious probing exercise that is oral argument. As the justices assumed their respective positions on the bench (allocated by seniority), the portrait of the courtroom before me appeared complete. I recalled that I was now sitting in the same room where Thurgood Marshall once argued Brown v. Board of Education, where Richard Nixon was ordered to hand over incriminating tape recordings, and where the outcome of the 2000 Presidential race was effectively decided. Given the sweeping implications of the cases argued here, how could I not be nervous for the real attorneys?
The only consolation for my crippling nerves was that my then-firm belief that the justices themselves had already determined the outcome, and that oral arguments only served the symbolic purpose of informing both parties that the merits of the case were duly noted and considered. Given the well-known judicial philosophies of each particular justice, a mere glance at the question before the court would provide enough information to predict the result with relative certainty. The case that was being heard, Humanitarian Law Project v. Holder, concerned the challenge of a federal law that prohibits any person from providing "material support" to a group that the Secretary of State has designated a terrorist organization. The likely result? By a 5-4 vote with Kennedy, Scalia, Thomas, Roberts, and Alito in the majority, the government prevails, and the decision tips the balance of law away from First Amendment protections in favor of national security concerns. Or at least so I thought. In essence, I expected oral arguments to be largely irrelevant, and my presence there was inspired more by a lifelong affinity for all things Supreme Court than by a belief that an important Constitutional question would actually be resolved in my midst. What transpired over the next 60 minutes, however, both confirmed and dashed my preconceived notions about the role of oral advocacy in the Supreme Court.
Much attention and public scrutiny is directed at the behavior of the justices during arguments, primarily because verbal and nonverbal behavior is taken to indicate the direction in which a particular justice is leaning in deciding the case at bar. Justice Thomas continued his impressive streak of not speaking during arguments. (Incidentally, the last time Thomas did actively participate in oral arguments was February 22, 2006, nearly four years to the day of the Court's consideration of Humanitarian Law Project). Predictably, Justice Kennedy announced publicly that he was struggling with the case, as if to reassure the lawyers that the quality and efficacy of their efforts would ultimately influence his vote. Justice Scalia (whose reputation and stature alone were enough to draw me to these oral arguments) expressed his strong incredulity at the possibility of a person providing some type of service, even humanitarian training, to a terrorist group without necessarily advancing the organization's violent ends. However, as I listened attentively, I shifted my focus away from the justices and toward the attorneys, and began to reconsider my dismissive opinion of the purely symbolic quality of the oral arguments.
Sitting there, I could not help but sense a correlation between the strength of each attorney's advocacy skills and the strengths of their respective cases. In a way, the merits are prejudiced by their presenters. For example, I suddenly became more suspicious of the government's position when its attorney, Solicitor General Elena Kagan, backed herself into a corner by intimating that a law firm could be criminally prosecuted for filing an amicus brief on behalf of a terrorist organization. Similarly, counsel for the Humanitarian Law Project drew several convincing analogies which elucidated the consequences of a ruling against them. (Could a Washington Post editor be prosecuted for publishing an op-ed written by the leader of Hamas?) Unfortunately, because the statute in this case was challenged only as it applied to the Humanitarian Law Project, the weight of these hypothetical situations was of little consequence. This fact was immaterial to those of us who were awe-stricken by the prowess of the exceptionally skilled and experienced advocates.
I visited the Supreme Court because, as a student of the institution, I wanted to see in person the justices I have so long admired. However, like the cases themselves, everything I needed to know about the nine men and women who comprise the highest tribunal of the United States can be read in the appropriate literature. I did not need to experience oral arguments to confirm that Justice Scalia occasionally cracks a joke while badgering an attorney, or that Justice Kennedy will acknowledge that he is confounded by the legal issues in play. Rather, oral argument is the attorney's showcase, and despite the justices' frequent interjections, the attorneys themselves impart invaluable lessons, and the strength of the arguments they present is reflected by the confidence and zeal they possess, and may go beyond the actual merits of a case. This explains the growth of an exclusive class of Supreme Court litigators whose services are only retained when a case reaches the Court. I was interested to learn that Chief Justice Rehnquist would often point out to the Court that the attorney presenting a case was an expert on the matter because that same attorney had argued several previous cases on the same issue. (One of these attorneys was the current Chief Justice, John Roberts, who clerked for Rehnquist and subsequently argued dozens of cases in the Supreme Court). I was left wondering whether or not the prestige and acumen of a particular litigator does affect the decision-making processes of the justices, albeit in a subconscious way. Whatever the answer may be, the over-glorification that had long influenced my views of the Supreme Court gave way to the reality that the Court is a very human institution, composed of very human judges who make determinations based on both written and oral presentations delivered by very human lawyers.
The art of effective representation is the art of persuasion, and no person – judge, justice, lawyer, or casual observer – is impervious to the potent effects of sound oral advocacy. I left the courtroom, and contrary to my impressions prior to the argument, I was nearly convinced that the Law Project had the better case. After experiencing the oral argument first-hand, I would be surprised if the justices themselves were not undergoing the same re-evaluation.
Mentioned in this article:
JURIST – Paper Chase Report on Oral Argument
Brief for Humanitarian Law Project
Brief for Holder
Oral Argument Transcript
