Supreme Court argument thru history
I was just reading David C. Frederick's book, "Supreme Court and Appellate Advocacy," which I'd ordered to see if there were any tricks that I'd missed in 30+ years.
He begins with an interesting historical commentary. In the earliest Supreme Court, there were apparently no written briefs. The case was decided upon oral argument, which was sometimes presented over days by a team of attorneys (in one case, six attorneys on one side, who took seven days. 6-7 days was frequently the span. I'd guess teaming up was essential -- try speaking for a solid week, or a solid day, without your voice giving out).
Also in the early days, the docket was flexible. Attorney might have to travel in, so the argument could be held when they all arrive. But in 1830 the Court went with something like a modern docket: the next argument begins when this one ends. That created quite a burden, since you might arrive in DC and wait a week or two for the previous argument to end.
In 1795, the Court ordered counsel to provide a written summary of the "material points" of their case. In 1812, it limited arguing attorneys to two per side. In 1833 it recommended (it didn't order) submission of something closer to the modern brief. Eventually that led to argument being much shorter. Eventually it went to a two-hour per side limitation (its workload increasing from 98 cases in 1810 to 253 cases in 1850), which has now shrunk to a half hour per side..
While there are few records, indications are that in the early court the judges heard argument and didn't ask many questions. In the late 1940s, one experienced advocate counseled that attorneys presenting a one-hour argument should only have 40 minutes of argument, because the Justices asked so many questions. (Today, that'd be more like prepare five minutes of argument, and be thankful if you got it in, in several pieces, between questions). In the Steel Seizure Cases (1952), the Court allotted 3 hours per side, and the first argument got only one question, but the other did get grilled.
I sure hope Texas wins this one. I would hate to think what would happen if the IJC decided all firearms in civilian hands be banned!
Posted by: Jim at October 11, 2007 10:02 PM
My inner cynic is comforted to know that the critical questions of our polity are decided on less than 5 minutes of argumentation.
OTOH, if we presume good faith all around and that all the parties involved have read their briefs and done their homework, I can see how the format is quite effecient. Presumably, the justices, having grokked the essence of the argument from the brief, can then probe the limits and weaknesses of the arguments in their questioning.
Posted by: geekWithA.45 at October 12, 2007 08:25 AM