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ORAL ARGUMENT IN THE SUPREME COURT: THE FELT
NECESSITIES OF THE TIME

Address before the Supreme Court Historical
Society by Stephen M. Shapiro
(1)

I would like to say at the outset that it is a privilege to share the podium today with Rex Lee, a great American and a great Solicitor General. Rex has described the role of the government advocate in the Supreme Court. I will round out his presentation by describing the role of counsel for the private litigant, with particular reference to oral argument. And since this group has a special interest in Supreme Court history, I plan to consider oral argument from a historical point of view, tracing its development into modern form and offering some practical suggestions for the advocate today.

I. Oral Argument In The Age of Discovery

It is interesting to return, through review of the historical record, to the early years of Supreme Court advocacy. One must begin by envisioning a Supreme Court that changed locations eight times during its first thirty years. The Court held its first session in the Exchange Building in New York in 1790. It then moved to Philadelphia, and from Philadelphia to Washington, where it heard argument in several different places, including Long's Tavern, the Bell Tavern, and a basement room of the Capitol which one observer described as "little better than a dungeon."(2)

Lawyers appearing before the Court in its early years had no substantial procedural guidance. The Court's first rule of practice stated only that it would "consider the practice of the Court of King's Bench and of Chancery, in England, as affording outlines for the practice of this Court" — curious standards for a Court intended to be predominantly an appellate tribunal.(3) The Court did, of course, have a trial function as well. And it conducted jury trials on at least three occasions.(4)

In the days of Chief Justice Marshall, the Court sat for as little as six weeks and handed down only a third of the number of opinions rendered by the modern Court. But the Justices worked at a rapid pace, announcing many decisions within a few days of argument and seldom more than two or three weeks later.(5) Those same Justices also were obliged to "ride circuit," some traveling by horseback, stagecoach, and riverboat as many as 10,000 miles per year.(6)

The Supreme Court bar, both when the Court sat in Philadelphia and in Washington, was a club-like group of local counsel who handled cases in the Court upon referral from counsel elsewhere.(7) Many of these advocates also were members of Congress and therefore were present in Washington when the Supreme Court sat.(8) These Congressmen, of course, represented private litigants and not the federal government.(9)

In contrast to their rather bleak surroundings, the Court's first advocates cut charismatic figures. It was the golden age of American Oratory, and lawyers such as Daniel Webster and William Pinkney delivered their arguments without any limitation on time. Arguments in the Supreme Court sometimes lasted as long as ten days.(10)

Advocates like Webster and Pinkney directed their arguments as much to the public as to the bench. The spectacle surrounding their debates often attracted crowds to the courtroom where members of high society sat in attendance. As Charles Warren relates, "the social season of Washington began with the opening of the Supreme Court term."(11) Webster once stopped in the middle of a phrase to start his argument anew upon spotting a group of late-arriving ladies.(12) Pinkney was even more affected by the presence of ladies of fashion. In one case, devoid of any dramatic interest, he adopted "his tragical tone in discussing the construction of an Act of Congress." Upon closing his speech in a solemn manner, he took his seat, reporting with a smile: "that will do for the ladies."(13) On at least two occasions, the emotional rhetoric of counsel brought tears to the eyes of the Great Chief Justice.(14)

The Supreme Court entertained these orations not only without limitation upon time but also without interruption. Quoting from a contemporary observer, Charles Warren describes the relationship between counsel and the Court as follows: "Counsel are heard in silence for hours, without being stopped or interrupted. * * * The Judges of the Court say nothing."(15) "It mattered not by whom the Court was addressed — Mr. Pinkney, Mr. Wirt, * * * [or] Mr. Webster — received the same and no greater apparent attention than any second or third rate lawyer arguing his first case."(16)

With this seemingly limitless indulgence from the bench, with no questioning to confine counsel to the bounds of the record or jurisdictional limits,(17) and with little precedent that could be viewed as binding, the oral arguments of counsel assumed an exuberant originality and variety.(18) To the extent that English common law held sway, counsel looked to the precedents of Lord Mansfield and his "joyous acceptance of the idea that judges are supposed to make law — the more law the better."(19) The Supreme Court and its bar pursued their joint venture in search of American law through far-ranging exercises in logic and excursions through legal history and political theory. This adventurous spirit evidenced itself in the words of Justice Story in Swift v. Tyson, 16 Peters (41 U.S.) 1, 19 (1842): "The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield * * * to be in great measure, not the law of a single country only [—let alone the law of a single state—], but of the commercial world."

II. The Orations of Daniel Webster

We catch a fascinating glimpse of Supreme Court argument in the age of Marshall and Taney from the recorded orations of Daniel Webster, who argued some 200 cases before the Court and participated in many of the major constitutional debates of the day. Webster adopted an "eclectic style" in Court. He gilded his arguments with classical allusions and rhetorical flourishes.(20) But he also supported them solidly with logic, history, and precedent. Webster typically stated his case concisely, summarized the issues, gave his view of the issues, brushed aside his opponent's theory, and then returned to his own contentions.(21) It is reported that Webster sketched his arguments in skeletal form, relying on his ability to make extemporaneous presentations in Court.(22)

Webster's style of argument appears from the records of his speech in Trustees of Dartmouth College v. Woodward, 4 Wheaton (17 U.S.) 518 (1819). In that 4 hour argument, Webster challenged a New Hampshire statute which altered the charter and governance of his Alma Mater. Despite the limitation of the Supreme Court's jurisdiction on writ of error to federal constitutional issues, Webster argued that the New Hampshire statute infringed both state and federal constitutions. After briefly stating the case and the constitutional questions, he presented an argument woven from a multitude of separate strands, including the following: invocation of English tradition,(23) citation of English common law,(24) textual analysis of the provisions of the Constitution,(25) logical reasoning,(26) extended quotation from legal treatises,(27) reference to common understanding in the United States,(28) citation of lower court decisions in America,(29) citation of past Supreme Court decisions,(30) reference to Roman law,(31) recollection of abusive practices of English monarchs,(32) reference to the Federalist papers,(33) prediction of grave dangers to society from acceptance of the lower court's decision,(34) emotional appeals to sympathy,(35) interjection of fiery rhetoric,(36) and recital of a famous peroration:

"It is Sir, as I have said, a small college. And yet there are those who love it. * * * Sir, I know not how others may feel, but, for myself, and when I see my Alma Mater surrounded, like Caesar in the Senate-House, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me, and say, Et tu quoque mi filii! And thou too, my son!"(37)

If Webster showed great freedom in choosing among a multitude of different arguments, the Court showed still greater freedom. The opinion of the Court announced by Chief Justice Marshall ruled in favor of Webster's clients without citation to a single authority. Chief Justice Marshall proceeded, as was his custom in constitutional cases, as if the problem was one of pure logic. He adopted premises which he said were incontrovertible, and then reasoned from them to the conclusions that he wished to prove.(38)

III. Rising Caseloads and the Curtailment of Oratory

While the spectacular arguments of advocates such as Webster and Pinkney were stimulating to both the public and the bench,(39) the tradition of unlimited argument placed a growing strain on the Justices. Attendance at lengthy oral arguments without any relief from circuit-riding duty became even more burdensome as the Supreme Court's appellate docket expanded in the middle of the nineteenth century. To accommodate these new cases, the length of the Supreme Court's term rose from 43 days in 1825 to 99 days by 1845.(40) The number of cases on the Court's docket rose from 98 in 1810 to 253 by 1850, and most of those cases were subject to the Court's obligatory jurisdiction.(41)

Under these mounting caseload pressures, the Justices understandably grew impatient. According to John Marshall's biographer, Senator Beveridge, Marshall complained of simple boredom, quipping that the "acme of judicial distinction" consists in "the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says."(42) Story also found the arguments "excessively prolix and tedious."(43)

Marshall's successor, Chief Justice Roger Taney, complained of long arguments and long speeches, "which of course must combine much reflection and still more irrelevant matter."(44) Off the bench, Story exhorted members of the bar to curtail their oral presentations,(45) but "in the Supreme Court not the slightest control was exercised or even claimed."(46) Taney believed that curtailment would run counter to the tradition of oratory that still characterized public functions in American government.(47)

Ultimately, however, the Court exercised "self help" through its control over practice before it.(48) In 1849, over the dissent of two Justices, the Supreme Court adopted its Rule 53, whereby it ordered that no counsel should be permitted to speak for more than two hours without special leave of Court.(49) Simultaneously, the Court required counsel to submit in advance a printed abstract of points and authorities.(50)

This procedural innovation did not drain oral argument of eloquence, as the presentations in the Dred Scott case demonstrated.(51) Nor did long arguments entirely disappear. For example, in Ex parte McCardle, 7 Wallace (74 U.S.) 506, 514 (1868), the Court heard arguments extending over four days which encompassed a total of twelve hours — all, apparently, without question or interruption from the bench.(52)

The Court did, however, exercise firm control over argument time in most cases.(53) In addition, after the Civil War there is evidence that the Court began to closely question counsel during argument. In the words of former Attorney General Garland, who appeared before the Court frequently after the Civil War:

"Very often I have seen lawyers high up in their profession, but not used to the ways and manners of this court in this respect, frightened, so to speak, out of their wits into forgetfulness of the entire case, when suddenly pulled up by the court to know this or that before they had time to tell anything of it, and when they were getting ready to tell it. This is probably due, to a great extent, to the heretofore over-choked and charged condition of the business of the court."(54)

While Garland opposed excessive questioning, he clearly believed that the new practice served a vital purpose: "this sort of colloquy with the judges and lawyers is the shortest and best way to reach the very heart of the case."(55) Garland also confirms that, in the period following the Civil War, the Court strictly enforced the two-hour time limit in most cases.(56)

Garland further remarked that in his time there was some diminution in attention paid to counsel's arguments. Particularly during the lunch hour, he reported, "we do find some of the judges unavoidably 'napping, napping, only this and nothing more.'"(57)

The Justices also left the bench in the midst of argument for refreshment: "Behind their seats, where persons are passing to and fro, a sort of ad interim or pro tempore restaurant is in progress, and counsel is arguing in front and hears the rattle of dishes, knives and forks * * *."(58)

Following the turn of the century, the Court's steadily-increasing workload placed new pressures on it to limit argument. According to Charles Butler, a former Reporter of Decisions of the Supreme Court, Justice Holmes, among others, "was all for cutting the time down."(59) In addition, the practice of questioning counsel acquired new vigor. Some Justices began interrogation of counsel at "the very threshold of his argument."(60)

When Justice White became Chief Justice in 1910, he instituted the so-called "summary docket" to which cases of lesser difficulty were relegated. Only thirty minutes per side were allotted for argument of cases on the summary docket. (61) In order to further confine the time devoted to argument in insubstantial cases, the Court adopted the practice of announcing, after hearing argument from the appellant, that it would not hear from the appellee. Although this announcement may have deflated the ego of counsel for the appellee — who wished to present argument — that impression was a transitory one, since it signaled that he had just won his case.(62)

In face of its heavy workload, the Supreme Court successfully urged Congress to pass the Judiciary Act of 1925, which converted most cases into certiorari cases subject to discretionary review.(63) The Court's revised rules, adopted that same year limited the amount of time available for argument to "one hour on each side." Cases on the so-called "summary docket" received only one-half hour per side.(64)

Chief Justice Hughes explained that "this restriction is due to the crowded calendar of the Court." He added, however, that curtailment of argument would not detract from substance: "The progress of civilization is but little reflected in the processes of argumentation and a vast amount of time is unavoidably wasted in the Supreme Court in listening to futile discussion * * *."(65) The Chief Justice also explained that "the judges of the Supreme Court are quite free in addressing questions to counsel during argument. * * * From the standpoint of the bench, the desirability of questions is quite obvious as the judges are not there to listen to speeches but to decide the case."(66)

During the tenure of Chief Justice Hughes, the Court favored questions designed "to bring out the weak points of an argument."(67) Hughes, according to Justice Frankfurter, knew just as much, if not more, about the case than counsel, and it was not uncommon to hear him state the case, argue both sides of it, and then indicate his opinion in subtle fashion, all through a series of genial questions from the bench. He also held a firm rein on the length of argument. "[A]s counsel opened his mouth, he would be clocked. And come the end of the allotted time, he would inform counsel courteously but nonetheless firmly that it was time to sit down. It has been reported that on one occasion that he called time on a leader of the New York Bar in the middle of the word 'if."'(68)

Justice Frankfurter proved a true disciple of Chief Justice Hughes in this respect. It is reported that in one case alone, he propounded 93 questions during oral argument.(69) This prompted one advocate who frequently appeared before the Court to comment that "[c]ontemporary argument is closer in format to the quiz programs on television than to the magnificent speeches of a hundred years ago."(70)

Oral argument in the Supreme Court reached its present form as a result of the 1970 rules revisions which reduced the length of argument to one-half hour per side.(71) The Court today hears approximately 160 hours of argument per term and only occasionally grants additional time to any litigant. Questioning from the bench varies from case to case. In my own experience, the colloquy has ranged from almost no questions to intense questioning throughout the entire thirty-minute period. In the latter situation, which is not uncommon, counsel cannot give a prepared presentation at all unless affirmative points are incorporated in answers to questions from the bench.

The Court has thus evolved in its nearly two hundred year history from a tribunal which entertains unlimited argument with no questions from the bench, to a tribunal which permits only one-half hour of argument per side with intense questioning from the bench.(72)

IV. Reasons for Curtailment of Argument

At first blush, it may appear surprising that the same Supreme Court, deciding cases of equal importance to the Nation throughout its two hundred year history, would adopt such fundamentally different procedures for resolving the issues that come before it. A number of explanations for the change in attitude toward oral argument can be advanced.

The traditional explanation for curtailment of argument has been the increase in the Court's workload, and certainly that is the predominant factor.(73) The Court today hears argument in approximately 180 cases and processes more than 4000 applications for review every term. It would therefore be impossible to hear counsel argue for days on end, even if the Court were disposed to do so.

Changes in the volume of work do not, however, appear to be the sole factor bearing on the Court's evolving attitude toward argument. For example, during the eras of Marshall and Taney, the Justices were severely burdened with growing circuit riding duties and frequently complained about long orations. Yet for almost sixty years, the Court granted counsel unlimited time. Today, by contrast, the Court is reluctant to extend argument time beyond one half-hour per side even in the most important cases, and will do so only when counsel demonstrates "with specificity * * * why the case cannot be presented within the half-hour limitation." Rule 38.3.

It is tempting to speculate about the reasons for this difference in attitude apart from changes in the Court's workload. Let me focus first on the early years of the Court's history. As previously described, Chief Justice Taney believed that curtailment of argument would be inconsistent with oratorical traditions of American government. In the days of Marshall and Taney, the dual role of lawyers at the bar and in politics made oratory as significant as legal scholarship.(74) Broad questions of constitutional theory or commercial policy, unilluminated by past precedents of the Supreme Court or by declarations of Congress, invited the kind of far-ranging exposition customary in contemporary political debate.(75)

The Court's toleration of extended argument also may have been a consequence of the high quality and specialization of the bar. In the days of Marshall and Taney, transportation was difficult, and lawyers around the country referred their cases to a small group of local counsel with special knowledge about the Court and its proceedings. There is reason to believe that this group provided valuable assistance to the Court.(76) As Robert Jackson explained, "[d]uring its early days the [Court] had the aid of counsel who expounded the Constitution from intimate and personal experience in its making."(77) The Justices had no library and no law clerks, so extended presentations by capable attorneys, gifted in the verbal arts, provided an especially important source of information.(78)

Finally, there are indications that — despite repeated complaints — the Justices were able to use periods of long argument with efficiency. In contrast to the present practice of hearing twelve cases in every weekly session and issuing opinions from one to eight months later, the Justices in the era of Chief Justice Marshall heard extended arguments in a single case, deliberated among themselves simultaneously, and produced their opinion in a few days. While a case was being argued, the Court would begin its deliberations: "We moot every question as we proceed, and my familiar conferences at our lodgings often come to a very quick, and, I trust, a very accurate opinion * * *."(79) Such interim conferences were facilitated by the fact that the Justices, from 1815 to 1830, lived together in a single boardinghouse.(80) By deliberating in this concentrated fashion during argument, the Court was able to announce its opinions in a period of time that was astonishingly short.(81)

The Marshall Court handed down a substantial number of opinions in major constitutional cases in five days or less.(82)

The Court today, of course, does not have time to entertain extended argument in any appreciable number of cases. Moreover, even if it could, such a mode of proceeding would not ordinarily be useful. This is true for several reasons.

In contrast to the early days of the Supreme Court, the Court today has abundant sources of information about the issues which come before it. It now has ample judicial precedents, policy prescriptions from Congress and administrative agencies, and voluminous commentary from legal scholars. It also has a large library and a staff of law clerks. It receives printed briefs not only from the parties, but also, in cases of major consequence, from amici curiae. And since, in most cases, it defers granting review until a conflict among the circuits has developed, it has the benefit of conflicting opinions of lower courts to illuminate the competing considerations of law and policy. The importance of oral argument in furnishing information is reduced by the plenitude of relevant written material and the assistance the Court receives in analyzing that material.

In addition, through the modern practice of questioning counsel, the Court is able to get the substance of argument with greater speed. If a point is obvious or repetitious, the Court can move the discussion ahead without loss of time. If a point is irrelevant, it can be cut off. If weaknesses have been obscured by a mass of detail in the briefs, the Court can expose those weaknesses through questions and answers. The Court can, in short, break down problems into manageable components and focus light where it is most needed through the questioning process. And since counsel realizes that time is fleeting, he must come to the essential points with dispatch.

Moreover, it is fair to say that the complexity of modern cases limits the utility of extended oral presentation and maximizes the need for reading. Many of the cases which reach the Court today turn on complicated statutory codes such as the Internal Revenue Code or the Social Security Act. Other cases involve technological issues arising from administrative agencies and these are surrounded by a labyrinth of regulations. Such cases do not lend themselves to extended oral presentation. Cases arising in our modern age of bureaucratic regulation and sophisticated technology place a premium on written advocacy and library research, with a lesser role for oral exposition.

Finally, mention must be made of changes in education of the bench and bar. In Webster's day, the curriculum included speeches by Isocrates and Cicero and other classical orators. But the tradition of oratory has been on the wane in American colleges and law schools for many years. Prominent law schools explicitly or implicitly discourage it. A student with no speaking ability can graduate at the top of the class. The limited occasions for speaking in law school — class discussion and moot court sessions— afford experience in the Socratic method, not in oratory. In the student's most important work in law school, the emphasis is on accurate (not stylish) writing, and that has become the dominant medium of communication in our appellate system. Neither the Justices nor the counsel appearing before them are likely to be at ease with high-style oratory.



V. Practical Implications for Today's Supreme Court Advocate

The trend toward reduced argument time in the Supreme Court does not imply that argument is unimportant to the Justices. The trend simply illustrates the aesthetic paradox that sometimes "less is more." Thus, even those Justices who have been most insistent on avoiding wasteful prolongation of argument have been equally insistent on preserving a reasonable amount of argument time. For example, Chief Justice Hughes once wrote that "the desirability * * * of a full exposition by oral argument in the highest court is not to be gainsaid," for it is "a great saving of time of the court in the examination of extended records and briefs, to be able more quickly to separate the wheat from the chaff."(83)

More recently, Justice Brennan has said that "oral argument is the absolutely indispensable ingredient of appellate advocacy * * * [O]ften my whole notion of what a case is about crystallizes at oral argument."(84) Justice Brennan also has observed that "I have had too many occasions when my judgment of a decision has turned on what happened in oral argument, not to be terribly concerned for myself were I to be denied oral argument."(85)

Similarly, Justice White has emphasized that oral argument is not merely a "ritual extension of due process to the parties," but "remains an important step in the decision-making process."(86) And Justice Rehnquist has observed that "[o]ral advocacy is probably more important in the Supreme Court of the United States than in most other appellate courts. For unlike other appellate courts, a grant of certiorari by the Supreme Court to review a decision of a lower court suggests that the case at issue is a genuinely doubtful one."(87) Thus, at least for the present, there is little prospect of any further reduction in argument time— and certainly no danger of its elimination.

The evolution outlined above has important implications, nonetheless, for counsel presenting a case in the Supreme Court today. The essential conditions of the modern argument are rigid time limitations and unpredictable, but usually intense, questioning from the bench. Lawyers preparing for argument must constantly bear those conditions in mind. The following more specific suggestions also may be of value.(88)

It is important to recognize that the Court does not desire a speech from counsel, but expects help in resolving the case according to its own needs. As Justice White has explained, the Justices use argument "to clarify their own thinking and perhaps that of their colleagues. Consequently, we treat lawyers as a resource rather than as orators who should be heard out according to their own desires."(89) Because the Court uses counsel as an information resource, he or she must know the record, the issues, and the authorities from top to bottom, so that accurate answers to questions can be quickly provided. It is not enough to master a prepared speech.

Counsel also must bear in mind that the amount of questioning will be unpredictable, and that the argument must therefore shift smoothly from a prepared presentation to a spontaneous colloquy with the Court. This means that any prepared remarks should expand or contract like an accordion. Counsel must identify in advance the few important points that need to be made, no matter how intense questioning becomes, and be prepared to put the rest aside. As the Chief Justice has stated, "I recommend that you not rely on a prepared argument, because the Court is not going to let you present it."(90) This means that counsel should in no event attempt to stick inflexibly to a prepared script or fail to follow the Court's lead to areas of interest.

When questioning is intensive, it is important to try to weave key substantive ideas into answers to questions presented by the Court. This requires flexibility. Questions from the Court should be used as stepping stones to points that need to be explained. Every question requires an accurate and courteous answer, but more time should be spent in dealing with central issues than collateral issues raised by the bench.

The substantive points during argument should be the main, common sense reasons why your client is entitled to win the case. The technical side of the case can be left to the briefs. As Justice Rehnquist has said, "the more flesh and blood you can insert into it, as opposed to a dry recitation of principles of law or decided cases, the more interesting and effective that argument can be." He also analogized the relationship between a brief and an oral argument to the relationship between a movie and a preview that "selects dramatic or interesting scenes that are apt to catch the interest of the viewer and make him want to see the entire movie."(91)

In selecting the substantive points for emphasis during argument, one should, in the current vernacular, "go for the jugular." That means you should pick the most important point or two and make your most convincing argument. As Justice Rehnquist has observed, in some cases the most impressive point may be factual and in other cases legal.(92) But the argument never should begin with a dubious or provocative contention that throws a bath of cold water on the rest of the presentation.

It also is helpful to remember, in arguing substantive legal principles, that the Court has moved considerably beyond the "age of discovery." The Court no longer lacks judicial precedents, and it renders many of its decisions in the context of Congressional prescriptions of public policy. In debating the meaning of federal legislation, it is important to focus on the intent of the draftsmen, as expressed in the literal language of the provisions at issue, their structure, and their history. As the Court has reminded the bar, while it is "emphatically the province and duty of the judicial department to say what the law is," "it is equally — and emphatically — the exclusive province of Congress * * * to formulate legislative policies."(93)

Finally, in light of the heavy workload of the Court, it is best to follow the example of twentieth-century advocates such as John W. Davis — rather than the example of Webster and Pinkney — and "sit down."(94) While the rules grant counsel a maximum of thirty minutes, the Court admires even greater brevity in oral presentation.

* * * *

It is now high time for me to follow the advice of John W. Davis. I thank you for your patience and interest.



Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

1. Mr.  Shapiro previously served as Deputy Solicitor General of the United States. He is currently a partner in Mayer, Brown & Platt.
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2. The Supreme Court - Its Homes Past and Present, 27 A.B.A.J. 283 (1941); 1 C. Warren, The Supreme Court in United States History 459 (1937).
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3. See Supreme Court Rule VII, promulgated in 1791 and reproduced in 1 Peters (26 U.S.) vi (1828). Professor Moore observes that this rule was "not very informational [and] it was also misleading." 13 Moore's Federal Practice at ¶800.01 (1982 ed.).
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4. See Georgia v. Brailsford, 3 Dallas (3 U.S.) 1 (1794); Oswald v. New York, 2 Dallas (2 U.S.) 401 (1795); Cutting v. South Carolina, 2 Dallas (2 U.S.) 415 (1797). In Brailsford, Chief Justice Jay charged the jury under "the good old rule" that permitted the jury "to judge * * * the law as well as the fact in controversy." 3 Dallas 4. The jury findings appear in The Supreme Court - Its Homes Past and Present, supra, 27 A.B.A.J. at 286 n. 3.
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5. G. White, The Working Life of the Marshall Court, 1815-1835, 70 Virginia L. Rev. 1, 2 (1984).
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6. G. Casper & R. Posner, The Workload of the Supreme Court 16 (1976).
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7. "It was upon this bar that the profession generally was dependent for information and ultimately for the management of a cause in the Supreme Court." J. Goebel, I History of the Supreme Court of the United States 666 (1971).
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8. M. Baxter, Daniel Webster and the Supreme Court 31 (1966) ("After all, should not those who made laws help interpret them?").
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9. Daniel Webster, for example, served in the House, the Senate, and the State Department while representing private clients before the Supreme Court. Id. at 227-228.
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10. J.W. Davis, The Argument of an Appeal, 26 A.B.A.J. 895 (1940): "in the Girard will case Webster, Horace Binney and others, for ten whole days assailed the listening ears of the Court."
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11. 1. C. Warren, supra, at 471. Some counsel appeared more concerned with the festive than the professional side of their performances. See J. Frank, Marble Palace 91-92 (1958): "In one case, argument was adjourned to give the distinguished lawyer Luther Martin a chance to sober up."
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12. S.W. Finley, Daniel Webster Packed Them In, 1979 Supreme Court Historical Society Yearbook at 70.
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13. l. C. Warren, supra, at 473 n. 1. Pinkney's speeches often were oratorical bouquets for the ladies rather than legal arguments for the bench. He once informed the Justices that "he would not weary the court, by going through a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which on the present occasion (bowing low) he wished to obey." M. Baxter, supra, at 28.
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14. R. Strickland, The Court and the Trail of Tears, 1979 Supreme Court Historical Society Yearbook 20, 26 ("Wirt's conclusion was so emotional that Chief Justice Marshall shed tears, something he had not done since the Dartmouth College Case").
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15. 1. C. Warren, supra, at 467.
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16. Id. at 470-471.
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17. See M. Baxter, supra, at 34: "Neither the bench nor bar felt as restrained by jurisdictional limits as would its modern counterpart. In their elaborations, lawyers wandered far beyond the record."
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18. As described by Grant Gilmore, lawyers practicing in the age of Marshall had few legal guideposts. Post-revolutionary lawyers knew English common law, but did not know the degree to which English precedent would govern in American courts. Anglophobia stemming from the Revolutionary War and the War of 1812 constrained enthusiastic acceptance of English precedent on a wholesale basis. "Thus, without constitutional guidance, the courts, state and federal, set out as joint venturers in quest of an American law." The Ages of American Law 19-25 (1977).
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19. "In this country, * * * a pure Mansfieldianism flourished: not only were his cases regularly cited, but his lighthearted disregard for precedent * * * became a notable feature of our early jurisprudence. Justice Story, in particular, both in his opinions and in his non-judicial writings, never tired of acknowledging his indebtedness to, and his reverence for, Lord Mansfield." Id. at 24.
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20. "His speeches expertly mingled the simple with the complex and, though generally incisive, sparkled with literary and historical allusions. A gifted Latin scholar, he spiced his arguments with classical quotations." M. Baxter, supra, at 10.
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21. "There was indeed a Websterian format. He commenced in a quiet, almost monotonous tone by stating the facts and questions of a controversy. His voice deepened and took on organ tones as he warmed to the topic. When he reached the crucial part of his case, his delivery attained compelling force, sweeping aside opposing positions as superficial or erroneous, advancing his own points — few and carefully chosen — with emphasis that made them plain. Finally his peroration. Wonderful moment! Here the pace slowed, but sentiment was lofty, punctuated with some of the lawyer's favorite Latin. At the end his auditors felt profoundly moved and nearly as exhausted as the orator." M. Baxter, supra, at 10.
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22. A. Konefsky & A. King, II The Papers of Daniel Webster, Ch. 2(1983).
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23. Webster's argument appears in II The Works of Daniel Webster 462 (Little & Brown ed. 1851). See id. at 469, arguing that the English parliament, while claiming power to alter college charters, "has very rarely attempted the exercise of this power."
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24. Id. at 470, citing Lord Mansfield's decisions.
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25. Ibid: "there are prohibitions in the constitution and Bill of Rights * * *." Id. at 494: "The words themselves contain no such distinction."
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26. Id. at 495: "If [New Hampshire] cannot repeal [charter provisions] altogether * * * it cannot repeal any part of them, or impair them, or essentially alter them, without the consent of the corporators."
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27. Id. at 485, quoting at length from Kent and Bracton.
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28. Id. at 477: "In New England, and perhaps throughout the United States, eleemosynary corporations have been generally established" by private charters under the governance of trustees.
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29. Id. at 483, citing a decision of the Supreme Court of North Carolina.
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30. Id. at 483-484.
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31. Id. at 486, discussing Roman law in the time of Justinian.
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32. Id. at 489-490: "Of all the attempts of James the Second to overturn the law, and the rights of his subjects, none was esteemed more arbitrary or tyrannical than his attack on Magdalen College, Oxford."
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33. Id. at 493, citing Madison's Federalist Paper No. 44.
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34. Id. at 500: "It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties * * * Colleges and halls will be deserted by all better spirits * * * * These consequences are neither remote nor possible only. They are certain and immediate."
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35. Id. at 489: "Nothing could have been less expected, in this age, than that there should have been an attempt, by acts of the legislature, to take away these college livings, the inadequate but the only support of literary men who have devoted their lives to the instruction of youth."
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36. Id. at 486: "If the constitution be not altogether wastepaper, it has restrained the power of the legislature in these particulars."
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37. M. Baxter supra, at 84.
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38. W. Lewis, Backstage at Dartmouth College, 1977 Supreme Court Historical Society Yearbook, 29, 36.
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39. J. Frank, Marble Palace 92 (1958): "A good crowd gave the bench a sense of self-importance; the Justices themselves were sometimes stimulated to more active interest by the presence of an audience."
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40. Casper and Posner, supra, at 13.
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41. Id. at 12.
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42. 4 A. Beveridge, The Life of John Marshall 83 (1929).
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43. Quoted in Chief Justice Hughes, The Supreme Court of the United States 60 (1928).
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44. C. Swisher, V History of the Supreme Court of the United States 277 (1974).
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45. Id. at 278.
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46. Ibid.
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47. Ibid.
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48. F. Frankfurter and J. Landis, The Business of the Supreme Court 52 (1928).
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49. The rule is reproduced at 21 Howard (62 U.S.) XII.
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50. Ibid.
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51. See III C. Warren, The Supreme Court in United States History 9-10 (1922), describing newspaper accounts of the "eloquent and witty" argument of counsel, which "partook more of the character of a stump speech than that of a jurist."
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52. C. Fairman, VI History of the Supreme Court of the United States 451, 456 (1974).
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53. See III C. Warren, supra, citing the complaint of observers that argument in the Dred Scott case was "too brief," counsel being limited "to one hour and a quarter." Id. at 9.
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54. A. Garland, Experience in the United States Supreme Court 46-47 (1898).
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55. Id. at 50.
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56. Id. at 48-49. Garland voiced no objection to the two-hour limitation, but observed whimsically that "[w]hile I have not heard of any lawyers dying under this limitation upon their speaking, yet I have known some to grow melancholy and sicken under it * * *." Id. at 49.
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57. Id. at 62.
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58. Id. at 62-63.
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59. C. Butler, A Century at the Bar of the Supreme Court of the United States 86-87 (1942 ed.).
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60. John W. Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 898 (1940). In one such instance, Chief Justice White "was heard to moan 'I want to hear the argument.' 'So do I, damn him,' growled his neighbor, Justice Holmes."
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61. C. Butler, supra, at 87.
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62. Id. at 87-88.
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63. 43 Stat. 936 (1925). The background of this statute and its effect on the Court's workload are discussed in Chapter 1 of R. Stern, E. Gressman, S. Shapiro, Supreme Court Practice (6th edition forthcoming 1985).
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64. The Court's 1925 rules revisions appear in 266 U.S. 653, 673-674.
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65. The Supreme Court of the United States 61-62 (1928).
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66. Ibid.
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67. Justice Felix Frankfurter, The 'Administrative Side' of Chief Justice Hughes, 63 Harv. L. Rev. 15, 16-17 (1949).
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68. Id. at 17.
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69. J. Frank, Marble Palace 102-105 (1958).
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70. Id. at 102. Counsel in the case referred to by Mr. Frank encountered a total of 237 questions during the entire argument. Such intense questioning was "impiously called 'the Felix problem."' Id. at 106. And while Garland had seen counsel frightened into utter silence by sharp questions (see p. 13, supra), Frank reports two instances in which counsel "fainted in the courtroom" under heavy questioning from the bench (id. at 101).
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71. See 398 U.S. 1009, 1058 (1970). Oral argument under the one-half hour rule is discussed in S. Shapiro, Oral Argument in the Supreme Court of the United States, 33 Catholic University L. Rev. 525 (1984).
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72. In 1980, the Court curtailed written argument by limiting the page length of briefs and other filings. See 445 U.S. 983 (1980).
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73. See R. Stern, E. Gressman, and S. Shapiro, Supreme Court Practice Ch. 1 (6th edition forthcoming 1985), for a review of the growth in the Court's caseload.
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74. See M. Baxter, supra, at 33-34: "Accustomed to interminable speeches in Congress, these political war horses could not change their pace when they went to Court. But in both instances they exemplified the standards of their times, for this was the golden age of American oratory. As college students, they had attended rhetoric classes, read the Greek and Latin orations, joined debating societies. * * * In the Supreme Court, the attorneys were fulfilling the expectations of everyone."
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75. "[T]hese years were a formative era of constitutional law, to some extent of other branches of law as well, and counsel enjoyed the freedom of pioneers. Penetrating the unmapped wilderness of social and legal problems, they defined issues, uncovered precedents, suggested promising rules of decision. The Court, and the public too, was willing for them to do so. A dual status as lawyers and politicians strengthened their ability to cut paths through the legal thickets of their time." M. Baxter, supra, at 35. See also G. White, The Working Life of The Marshall Court, 1815-1835, 70 Virginia L. Rev. 1, 48-52 (1984). For another historical view, see R. Pound, The Spirit of the Common Law 124-125 (1921) (likening long arguments to "combat" by attrition and "frontier modes of thought").
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76. "In comparison with counsel in other periods these men were peculiarly well prepared for such a function. Many, like Webster, had political experience applicable to questions before the bench. Many more contributed from their study of scarce or obscure reports and commentaries." M. Baxter, supra, at 27.
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77. Proceedings in commemoration of the 150th Anniversary of the Supreme Court, H.R. Doc. No. 649, 76th Cong., 3d Sess. 12 (1940).
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78. G. White, supra, 70 Virginia L. Rev. 1.
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79. Justice Joseph Story, quoted by Chief Justice Hughes in The Supreme Court of the United States 61 (1928).
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80. G. White, supra, 70 Virginia L. Rev. at 6 ("The boardinghouse became the nerve center of their existence in Washington").
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81. Id. at 30.
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82. Id. at 30-31. Professor White indicates that the Justices also may have been "using time during oral argument to prepare the skeleton of opinions." Id. at 32.
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83. Chief Justice Hughes, The Supreme Court of the United States 62-63 (1928).
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84. Harvard Law School Occasional Pamphlet Number Nine at 22-23 (1967).
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85. Remarks at the Third Circuit Judicial Conference, reproducedat 67 F.R.D. 195, 254 (1975).
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86. Justice White, The Work of the Supreme Court: A Nuts and Bolts Description, October 1982 N.Y. State Bar J. 346, 383.
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87. Justice Rehnquist, Oral Advocacy, A Disappearing Art, 35 Mercer L. Rev. 1015, 1027 (1984).
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88. For a detailed discussion of oral argument technique, See S. Shapiro, Oral Argument in the Supreme Court of the United States, 33 Catholic U.L. Rev. 529 (1984).
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89. Justice White, supra, October 1982 N.Y.S. Bar J. at 383.
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90. Chief Justice Burger, Conference on Supreme Court Advocacy,33 Catholic U.L. Rev. 525, 527 (1984).
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91. Justice Rehnquist, supra, 35 Mercer L. Rev. at 1024-1025.
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92. Id. at 1025-1027. The Court will not ordinarily reconsider factual questions decided in the same way by two lower courts (Berenyi v.Immigration Director, 385 U.S. 630, 635 (1967), but it may well disagree about the legal significance of those facts (Illinois v. Gates, 462 U.S. 213, 225-246 (1983)).
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93. TVA v. Hill, 437 U.S. 153, 172, 194 (1978). In other words, the advocate must approach the Court with recognition that, while it has an enormously important role in elucidating statutory policy, it has no disposition to revise federal legislation or prescribe statutory policy of its own.
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94. Davis' famous Tenth Commandment of oral argument was peremptory: "Sit down." The Argument of an Appeal, supra, 26 A.B.A.J. at 898.
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