Tinker and Free Speech

In Tinker, three high school students wore black armbands to school in protest of the Vietnam War in violation of school policy. The case presented a straightforward legal question: Did the students have a First Amendment right to do so? But the case also implicated the complex and conflicted national dialogue about the war and the continued involvement of the United States.

The case was argued on November 12, 1968, with Dan Johnston of the Iowa Civil Liberties Union representing the students and Allan Herrick, an attorney in private practice, representing the school district. By an interesting coincidence—or not—on the morning of the argument, the Court announced its decision in Epperson v. Arkansas, 393 U.S. 97 (1968), which declared unconstitutional a state law that banned the teaching of evolution in public schools. Epperson’s implicit endorsement of the right of students to think for themselves may have indirectly signaled that Herrick was going to have a rough day in court, and so he did.

Johnston, as attorney for the petitioners, went first and he encountered some difficulties of his own. An early miscue occurred when he referred to the Court’s decision from that morning in Epperson. While Epperson was, in some broad sense, ideologically aligned with the result Johnston wanted, it turned on a different body of doctrine. When Johnston invoked Epperson, Justice Abe Fortas jumped in: “Well, this is not a religious establishment case here?” he asked. Johnston had to concede that he had started his argument with a case that was not on point.

Johnston’s argument was churning along when Justice Byron White interrupted. White posed a hypothetical: What about a student who stood up in class and insisted on stating orally the same message conveyed by the students’ armbands? Surely that would be disruptive, White implied. Johnston acknowledged that such behavior would “clearly” be problematic.

White persisted. If the school district could discipline that behavior, then why couldn’t it take actions against students for wearing armbands that are similarly disruptive? A few excerpts give a good sense of the swampy waters into which White drew Johnston:

Justice White: Why did they wear the armband to the class, to express that message?

Mr. Johnston: To express the message, yes.

Justice White: To everybody in the class?

Mr. Johnston: To everyone in the class, yes, Your Honor.

Justice White: And everybody while they were listening to some other subject matter was supposed to also be looking at the armband and taking in that message?

* * *

Mr. Johnston: They were intended to see it in a way that would not be distracting.

Justice White: And to understand it?

Mr. Johnston: And to understand it, yes, Your Honor.

Justice White: And to absorb that message?

Mr. Johnston: And to absorb the message.

Justice White: While they’re studying arithmetic or mathematics, they are supposed to be picking up this message about Vietnam.

Mr. Johnston: Well, except that, Your Honor, I believe that the method that the students chose in this particular instance was specially designed in such a way that it would not cause that kind of disruption. . . 

Justice White: You mean they’re just wearing a meaningless armband?

Mr. Johnston: No, Your Honor. I believe they were —

Justice White: Carrying an ineffective message and they intended it to be ineffective?

* * *

Justice White: They anticipated students to see and understand and think about it.

Mr. Johnston: That’s correct.

Justice White: And when they did it in class, they intended the students to do it in class?

Mr. Johnston: I think it’s as fair an assumption that the method of expression —

Justice White: They intended to — they intended the students to think about it outside the class but not in class?

Throughout this manifestly uncomfortable part of his argument, Johnston attempted to redirect Justice White’s attention to the fact that the record contained no evidence that the armbands had resulted in any actual disruption—but White was undeterred. Finally, Justice Abe Fortas stepped in to ask Johnston some questions that allowed him to underscore again the absence of any disruption, and something here evidently made an impression because Justice White ultimately voted Johnston’s way.

Allan Herrick then rose to argue for the school district. He began by making a few points about whether school administrators needed to wait for violence to erupt before they could act and whether the Court wanted to involve itself in every dispute that might arise over a school district policy. Like Johnston, he hoped to draw on one of the Court’s recent decisions as precedent, so he cited Adderley v. Florida, 385 U.S. 39 (1966), which upheld the trespass convictions of a number of students who had gathered at a jail to conduct a protest.

Justice Marshall interrupted:

Justice Marshall: Mr. Herrick, how many students were involved in the Adderley case?

Mr. Herrick: In the Adderley case?

Justice Marshall: Uh-huh. Several hundred, wasn’t it?

Mr. Herrick: It was a large — quite a large number.

Justice Marshall: How many were involved in this one?

Mr. Herrick: Well, there were — that’s a question, Your Honor, of what you mean by involved. There are 18 —

Justice Marshall: How many were wearing an armband?

Mr. Herrick: Well, there were five suspended —

Justice Marshall: Five?

Mr. Herrick: — for wearing armbands, Your Honor.

Justice Marshall: Well, were there any wearing armbands who were not suspended?

Mr. Herrick: Yes, I think there were two —

Justice Marshall: That makes seven? Seven out of 18,000 and the school board was afraid that seven students wearing an armband would disrupt 18,000.

Mr. Herrick: I think if the Court —

Justice Marshall: Am I correct?

This was not an auspicious beginning.

But things got rockier for Herrick. Chief Justice Warren, countering Justice White, came up with a hypothetical of his own. What if the students had simply worn a political button? On Herrick’s reasoning, couldn’t the school district prohibit that? If so, then couldn’t the school district effectively shut down all political discourse on school grounds? Herrick tried to distinguish this case on the basis that armbands in protest of the Vietnam War were different from the chief justice’s examples because the “situation” around them was “explosive.” This proved to be a strategic error.

Where, Warren asked, was the evidence of any such “explosiveness”? In response, Herrick read a passage from John Tinker’s deposition transcript where he stated (while emphasizing that no one threatened him) that some students had asked him in a “friendly” manner to take the armband off while others were “milling about.” As evidence of explosiveness goes, this is underwhelming.

It is interesting, though, that Herrick did not seem to sense this. Indeed, far from backing off of his ambitious characterization of the volatility of the circumstances, Herrick used the term again in a later exchange with Justice Marshall. Marshall took the word as his own and pressed Herrick to identify the circumstances that gave rise to this “explosive” situation. Given the record evidence, Herrick struggled mightily, and unsuccessfully, to do so.

Lessons from Tinker

Several lessons emerge from a close study of the stumbles that occurred in the course of these arguments.

First, it seems clear that both lawyers erred by leading off with references to cases that were easily distinguishable. Indeed, Marshall did not just distinguish Adderley; he used it as a vehicle for emphasizing the small number of students involved in the protest in the Des Moines school. Marshall’s “seven out of 18,000” statement is one of the most powerful in the course of the argument. And it was an unforced error on Herrick’s part; Herrick’s citation of Adderley caused it.

Of course, Marshall was hostile to Herrick’s position. But it is worth noting that Justice Fortas—who was sympathetic to the students’ cause and who ultimately authored the Court’s decision upholding their right to protest—interrupted Johnston to distinguish Epperson. The lesson seems clear: Do not make more of a case than it is worth, even if it comes from the same court and even if it works well with the general atmospherics of your argument.

Second, Herrick’s “explosive” overstatements got him into trouble from which he could not extricate himself. Herrick may have been able to argue persuasively that school administrators do not have to wait until a major disruption occurs to take action and that courts should defer to the judgments of professional educators in such matters. But contending that the record contained evidence of an “explosive” situation did nothing but set Herrick up for the sort of skepticism that Justice Marshall expressed with something approaching glee. This lesson is universal: Don’t let your zeal for your case lead you to overstate it.

There is, perhaps, a third and related lesson, although it requires some long-distance psychologizing. Historians of the Tinker case tell us that Herrick was a true believer in his client’s cause: Regular counsel to the school district, he was the veteran of two wars, highly patriotic and strongly anti-communist, and resentful of the Tinker family’s activism. It may be that Herrick genuinely believed the situation was “explosive” because that was how he subjectively perceived and experienced it. If so, then a third lesson emerges: Particularly in cases that implicate social norms, moot your argument in front of some people who think about the world differently than you do.

The Court decided Tinker in Johnston’s favor by a 7–2 vote, a result that may also help explain why Herrick had the tougher day at oral argument. This suggests that additional, or at least different, lessons may be presented by a case that the Court viewed as closer and decided with less unanimity.

Bakke and Affirmative Action

With that in mind, we fast-forward a decade to the Court’s splintered decision in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

Like Tinker, Bakke concerned one of the most controversial issues of the day: the use of race-based affirmative action in university admissions. Allan Bakke, a white male, sued after he was not granted admission to the University of California, Davis, Medical School, which had a “special program” that reserved spots in each new entering class for minority students. Ultimately, four justices concluded the program was unconstitutional; four thought it permissible; and Justice Powell split the difference—agreeing that the school’s program was an unconstitutional quota system but also agreeing that it would not have been unconstitutional for the school to consider race as one of many factors in making admissions decisions.

The Court heard first from the attorney representing the university, Archibald Cox. Cox was easily among the most distinguished advocates to have ever appeared before the Court, and the justices knew him well. A professor at Harvard Law School and former solicitor general, Cox had achieved legendary status when Richard Nixon orchestrated his firing as the special prosecutor investigating the events at Watergate.

Cox argued brilliantly, but none of the justices pushed him particularly hard, either. Indeed, they generally treated him with considerable deference—at various points, Chief Justice Burger and Justice Blackmun apologized for interrupting him. Cox even joked a bit with them. When Justice Stevens asked if the special program could be analogized to an athletic scholarship, noting that all colleges aspire toward athletic prowess, Cox responded, “Well, I come from Harvard, sir. I don’t know whether it’s our aim but we don’t do it very well.”

After Cox finished, the Court heard argument from Solicitor General Wade McCree. McCree was highly distinguished in his own right: a former federal judge, the first African American appointed to the United States Court of Appeals for the Sixth Circuit, and a formidable oral advocate. He, too, gave an excellent argument, and the justices were highly deferential to him as well. Indeed, up to this point, the primary lesson of the oral arguments in the Bakke case seems to be that no poor soul should ever have to follow Archibald Cox and Wade McCree.

But, of course, someone did have to come after them, and that unenviable task fell to Reynold Colvin, the attorney for Allan Bakke. Colvin was a good lawyer: He had attended Boalt Hall Law School, had worked as an assistant U.S. attorney, and had an established practice. But Colvin’s argument seemed to lurch from one stumble to the next.

He began his argument with these words:

It seems to me that the first thing that I ought to say to this Honorable Court is that I am Allan Bakke’s lawyer and Allan Bakke is my client and I do not say that in any formal or perfunctory way; I say that because this is a lawsuit.

It is hard to know what to make of this. It seems at best unnecessary to take precious oral argument time reminding the Supreme Court of the United States that there is a party, a lawyer, and a lawsuit.

At least one commentator suggested that this introit may have been clever in its own way, reminding the Court that this was a case that affected the life of a real person. But that seems like the sort of strategy that works better with juries than with appellate judges—especially Supreme Court justices. Indeed, argument observers noted that Colvin had a tendency to wander away from the podium and to address the jury-box-like area where the press was seated. The transcript captures the Chief Justice’s admonition to Colvin to stay closer to the microphone.

The larger problem is that Colvin persisted in this approach, spending most of his time talking about his lawyerly efforts to get Bakke into the U.C. Davis Medical School and about seemingly irrelevant details in the record below. The justices took turns trying to move him toward a discussion of the constitutional issues. Justice Rehnquist tried (“But no one is charging you with laches here, Mr. Colvin.”). Then a somewhat more impatient Justice White tried (“[Y]ou certainly are taking up a lot of your time. . . .”). Then an openly exasperated Justice Powell tried (“We are here—at least I am here—primarily to hear a constitutional argument. You have devoted twenty minutes to laboring a fact. . . .”). But Colvin was a juggernaut of transcript minutiae.

Lessons from Bakke

Of the several lessons that emerge from Colvin’s argument, the first is obvious enough: Start strong. The opening sentences of an oral argument are an advocate’s best opportunity to convey—usually without interruption—the central and strongest point of her or his case. Nevertheless, some lawyers, even very good ones, waste it by launching into a discussion of the factual or procedural background of the case or by engaging in other forms of preliminary throat clearing. Colvin’s opening is an unfortunate example.

The advocate’s second-best opportunity often lies in the closing sentences of an argument, but here too even good lawyers often fail to take advantage of it. Appellate judges, and law professors who judge lots of moot court competitions, hear practicing and aspiring lawyers close argument after argument by saying something like the following: “And so, for all these reasons, we ask that this court [affirm/reverse] the decision of the court below.” It is hard to imagine anything more useless or boring. It squanders the lawyer’s chance to leave the court with something memorable and persuasive ringing in its ears.

Another lesson that emerges from Colvin’s argument is this: Listen carefully to the comments and questions that the Court sends your way. Colvin received no fewer than three completely clear signals that he needed to shift his argument from a discussion of the (largely undisputed) facts to an analysis of the (richly complex) legal issues. But he just could not or would not do it.

We do not know why Colvin did not make this adjustment. Perhaps he had become too wedded to strategies that had worked in the lower courts; perhaps he misread the signals; perhaps nerves got the better of him—it was, after all, his first Supreme Court argument. Whatever the cause, the argument transcript conveys with uncomfortable clarity the result: a Court that grew increasingly hostile toward a lawyer who was not making good use of its time.

In fairness to Colvin, a first argument before any high court can be an intimidating experience and can be hard on an advocate who is not versed in how that court goes about its business. If Cox and McCree came across like demigods among their peers, Colvin seemed a stranger in a strange land. Indeed, he so quickly got so lost that he failed to pick up on the unsubtle directions the bench was sending his way.

Many high courts—including the Supreme Court of the United States and our own Michigan Supreme Court—now provide instructional manuals and other resources to help the uninitiated understand how oral argument in those tribunals operates. Indeed, a lawyer new to the Michigan Supreme Court can even watch recordings or live-streamed broadcasts of oral arguments to get a better sense of how things work there. In Colvin’s time, such resources were much more limited, to the extent they were available at all. Today an advocate has no such excuse.

Johnson and Flag Burning

Some cases are unique enough, however, that no amount of research and preparation about a court will provide a clear path for avoiding every obstacle. Which brings us to Texas v. Johnson, 491 U.S. 397 (1989), in which there were five votes to hold that the First Amendment protected Gregory Lee Johnson’s right to burn a United States flag in front of Dallas city hall. Johnson had been convicted and sentenced to jail time under a Texas statute that criminalized flag burning. But the 5–4 vote in this case was more complicated even than a typical 5–4. Justice Scalia joined three of the Court’s liberals in the majority opinion, which was a fairly straightforward defense of the expressive conduct. The fifth vote came in Justice Kennedy’s concurrence, which highlighted the offensiveness of the conduct but reluctantly agreed with the majority that Texas could not penalize it.

The dissenters were also splintered. Chief Justice Rehnquist and Justices White and O’Connor felt that the flag was simply too sacred for too many Americans and that its special status excepted it from the First Amendment’s protections and justified a statute banning its desecration. And Justice Stevens, traditionally one of the Court’s liberals, wrote a separate dissent; his view was that there was room to punish Johnson’s conduct without implicating his free expression. Post hoc, the opinions say a lot about how difficult this argument was going to be—and it was, for both lawyers.

Dallas County Assistant District Attorney Kathi Alyce Drew argued for Texas, and the renowned civil rights lawyer William Kunstler argued for Johnson. Both faced very active questioning, and for different reasons, neither seemed perfectly in control of the direction of his or her argument.

Drew plainly understood that she really had one job to do in this argument: convince five justices that a compelling state interest justified the statute. She smartly moved quickly to her two best offers of compelling interests: “One is the preservation of the flag as a symbol of nationhood and national unity. The second is the preservation of the peace.” She started with the symbolic nature of the flag, which was the theory three of the dissenters ended up liking. But Justice Scalia let no time pass before pushing back with characteristic forcefulness.

Justice Scalia’s opening question, and Drew’s answer, foreshadowed the rest of her argument on this topic:

Justice Scalia: Why did the defendant’s actions here destroy the symbol? His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for. His action does not make it any less a symbol.

Ms. Drew: Your Honor, we believe that if a symbol over a period of time is ignored or abused, that it can, in fact, lose its symbolic effect.

Justice Scalia: I think not at all.

And on it went from there.

Drew must have understood at this early moment that this would not be a winning argument with Justice Scalia. But she may have calculated that she just had to live with his pushback. Given what we know about how the case was decided, it may well have been that she had decided up front that she was not going to convince Justice Scalia on any theory but bet that this one might win both Justice Kennedy and Justice Stevens.

But Justice Kennedy followed Justice Scalia with his own skeptical questioning about whether the symbolic nature of the flag created a compelling interest in protecting it from burning. He was troubled by the difficulty of cabining the exception to just the national flag, noting that the state flag was also included in the statute: “So your category for one flag is now expanded to 51.” The exception, it seemed to him, was fairly mushy.

This discussion led the rest of the Court to pile on. What other symbols might deserve similar special status? The Constitution? The state flower? And Drew’s precious advocacy minutes were spent on the impossible task of drawing lines between government symbols, each of which (of course) has immeasurable subjective symbolic value to each individual justice, as to anyone else. Hindsight is easy, but when Justice Kennedy followed Justice Scalia, a course correction might have been in order. Drew almost never got to her second compelling interest pitch, that the state’s interest in preserving the peace justified punishing the conduct.

Lessons from Johnson

The lesson is easy to see when reading the transcript but is much harder to pull off in the heat of an argument. If you have two arguments and you are not sure which of the two might interest a majority of the Court or, perhaps more importantly, which of the two might interest the potential swing voters on the Court, be nimble enough with each to switch horses quickly. Drew started her argument claiming that two separate justifications supported the statute, either of which could have carried the day for her client, and ended up spending all of her time on one that—it was clear early on—was not going to win five votes.

When Kunstler stood up to argue Johnson’s case, he therefore had a lot of information about the Court’s views about that one argument—but none at all about whether there could be five justices who believed that preserving the peace might be a sufficiently compelling interest to justify the Texas statute. You might think this would counsel that he start there, making sure he had a chance to address any of the justices’ concerns about this second argument. But he didn’t.

Instead, Kunstler started with a point of statutory construction that had not been a topic of concern during Drew’s argument—whether the Texas statute required that the defendant must have intended offense by his conduct, or whether the fact that the offense resulted was enough. It is hard to understand what Kunstler’s goal was here because this did not seem to be a question any of the justices were focused on.

Kunstler was quite comfortable in an appellate court even though his experience was mostly in trial courtrooms. A self-identifying radical lawyer, Kunstler was a larger-than-life character who was known to enjoy and capitalize on the theater of advocacy. His ease comes right through the transcript of his argument.

Throughout, he was self-deprecating, humorous, and playful. For example, Kunstler was plainly prepared for Chief Justice Rehnquist to disagree with him about the similarity between the state forcing someone to salute the flag and preventing him from burning it. Kunstler gave his best pitch for why these were not different, but he was quick to acknowledge that he anticipated the chief justice’s continuing skepticism. Apparently reading the chief justice’s body language before waiting for his answer, Kunstler offered: “I don’t know if I’ve convinced you but. . . ” The chief justice responded to his modesty with kindness and humor: “Well, you may have convinced others.”

The laughter that follows this exchange reads naturally. You get the sense that Kunstler knew he was not going to get the chief justice’s vote and his strategy was to offer his very best arguments in a way that avoided irritating those justices not inclined to agree with him. At the same time, he seemed similarly determined to ingratiate himself with those justices he thought might vote his client’s way. For example, he started his argument with a doctrinal overview that included invoking an opinion by Justice O’Connor and one by Justice White.

Given the opinions that issued, Kunstler’s decision never to address the state’s separate argument about the interest in preserving the peace seems wise. But it did carry some risk. After all, in that moment, how could he know that some members of the Court might not gravitate toward that argument? Another lawyer might have at least asked the Court whether there were any questions about this particular theory so that he or she could respond if any justice had concerns.

We are inclined to think that Kunstler knew what he was doing. Yes, his argument can read as somewhat meandering and nonlinear. But it seems likely that Kunstler understood what a complicated case his was, counted to five before he stood up, and decided to leave well enough alone. This less-is-more strategy was decidedly counter to much of Kunstler’s other lawyering and personality—he was known as a fiery and passionate advocate who did not shy away from the spotlight—but it was the right call here.

There are countless examples of lawyers unable to leave well enough alone who manage to snatch defeat from the jaws of victory. And if Kunstler set out to avoid that fate, he succeeded in the most important ways—most of the justices seemed amused by and friendly toward him, and he won the case in the end. But he might have done less even more effectively.

That is the lesson we take from Kunstler’s argument: Just because you are given a certain number of minutes does not require you to fill them. As unsatisfying as it can be to pass on big sections of an argument after thoroughly preparing it, there are times when that is exactly the best approach. Kunstler’s tour through the doctrinal background was filler and did not advance any of his goals. Likewise, his long trial-appropriate summation at the end of his argument did not serve any purpose and risked alienating a justice or two. Sitting down early may have been a little further than Kunstler could go, but it might have made his argument even more effective.

It is fair to ask whether the instruction offered by these various miscalculations makes any difference. Many lawyers believe that cases are won or lost on the briefs and that few jurists change their minds based on oral argument. On this view, oral argument has more to do with theater and ritual than it does with substantive outcomes. In many cases, this may be true.

But the authors believe that oral argument matters more often than secretive judges want to confess or nervous lawyers want to admit. One of us—Justice McCormack—is certain that in the Michigan Supreme Court oral argument has made a difference in the decision in many cases. And the other of us—Len Niehoff—believes that he has on more than one occasion felt the prevailing winds of a case shift in the course of an argument on appeal.

“May it please the court,” many of us begin our arguments. And what we say next may—or may not. Learning from the miscues we describe above may help your odds.