February 02, 2016 Practice Points

Best Approach to Oral Arguments from the Bench?

By Michael L. Huggins

The Supreme Court's return from the winter break marks 10 years since Justice Clarence Thomas has asked a question during oral arguments. In comparison, it has been 45 years since any other Supreme Court justice has gone even one whole season without asking a question.

Justice Thomas has said that he believes it unnecessary and unhelpful in deciding cases "to ask that many questions." Instead, the justices "should listen to lawyers who are arguing their cases," and "allow the advocates to advocate."

Besides, in Justice Thomas's view, the briefs do most of the work. And the late Chief Justice William H. Rehnquist, at least in some respect, might have agreed. In 1987, Justice Rhenquist wrote: "If oral argument provides nothing more than a summary of the brief in monologue, it is of very little value to the court."

And if given the choice, Justice Thomas would have the bench refrain from the usual free-for-all approach to oral arguments. Justice Thomas has quipped that interrupting one another and spraying lawyers with questions makes the justices "look like Family Feud." One might wonder just how useful oral arguments actually are in such circumstances, particularly in light of Chief Justice John G. Roberts Jr.'s explanation that "[q]uite often the judges are debating among themselves and just using the lawyers as a backboard."

Regardless, the question remains whether Justice Thomas's silent approach maximizes the efficacy of oral arguments. While peppering advocates with questions may be unhelpful, or even counterproductive, so too might be refraining from probing at all. The best approach from the bench might be the one that takes advantage of the well-preparedness and legal ingenuity of the oral advocates who stand before the Court. Most advocates come ready and eager to be tested and to rise to any challenges the Court presents. And if oral arguments are to be more than a mere debate among the Justices, then it would seem that the bench should engage advocates on the critical points of their case.

Perhaps the Court should approach oral arguments with neither steadfast silence nor in a free-for-all manner. But rather, the Court might best maximize the usefulness of oral arguments by asking meaningful questions only if and as they arise.

Keywords: minority trial lawyer, litigation, proposed model rules, harassment, discrimination

Michael L. Huggins is the deputy attorney general for the State of California in San Francisco, California.


Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).