January 01, 2018

May It Displease the Court

Lessons from Supreme Court arguments that didn’t go well.

Hon. Bridget Mary McCormack and Len Niehoff

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Lawyers make mistakes during oral arguments—even arguments before the Supreme Court of the United States. One might think that missteps would be relatively rare in that hallowed hall, given the quality of the lawyers, the importance of the issues, and the guiding interventions of the justices. But if you study Supreme Court arguments, you will likely find yourself grimacing—or, worse, imagining the Court doing so—with unsettling regularity.

We devote a lot of attention to the many great lawyers who have argued before the Court, their win-loss records, and their displays of brilliance and wit. We study the arguments of these leading advocates because they have a lot to teach us.

In this article, we explore the possibility that there may also be instruction in those moments when a Supreme Court argument stalls, stumbles, sputters, or sinks. Indeed, it may be that troubled arguments offer us more or better lessons than untroubled ones, because the latter may say less about the advocate’s skill than they say about the strength of the advocate’s position, the relative simplicity of the issues, or a lawyer’s good fortune in having the right case at the moment.

We have no interest in unfairly criticizing those who have performed under the hot lights of the Supreme Court stage—before an audience that does not hesitate to talk back—from our comfortable perch in the wings. To the contrary, we take it on faith that the overwhelming majority of attorneys who appear before the Court (including the attorneys we discuss here) are highly intelligent, wonderfully accomplished, and exquisitely well prepared advocates. Indeed, that is precisely why problems in their arguments seem so instructive—even they hit rough spots in that court after so much hard work. This calls the question: How and why did it happen?

To get at some answers, we look at the arguments from three of the most important cases decided by the Supreme Court. And we begin with a case that is a staple in law school constitutional law casebooks: Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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