Over at the Volokh Conspiracy, guest commentators Nelson Lund and Craig Lerner have been presenting their proposals for reforming a Supreme Court that they perceive to be increasingly obsessed with its own star power.   I question to some degree their underlying premise — that Supreme Court justices have become such egotistical maniacs that it’s actually beginning to affect their job performance.  Nevertheless, if one does grant that premise, there should be one more target of reform:  oral argument.

I understand that oral argument has long been a target of criticism, even for at least one Justice.  But the argument to me is an oldie but a goodie.  Sadly, oral argument seems like it’s increasingly become a platform for witty quips and sniping between the star-hungry Justices.  A couple weeks ago, for instance (in Briscoe v. Virginia), Justice Scalia used oral arguments to unabashedly criticize his fellow judges for even taking the case.  (“Why is this case here except as an opportunity to upset Melendez-Diaz [a prior similar case]? . . . I’m not criticizing [the appellant]; I’m criticizing us for taking this case.”).  That’s not what oral argument is for.

At the Supreme Court level, oral argument no longer serves its two fundamental purposes.

First, there is some suggestion that arguments add a “democratic” element to an otherwise oligarchical institution.  Yes, it’s kind of fun to see the Justice toy with the issues before our very eyes.  But isn’t that what opinions are for?  And yes, it’s a nice idea that every litigant — or at least those granted cert and argument — literally gets to have their voice heard in open court.  But isn’t that what the briefs are for?  Generally, however, I don’t think this is a valid interest in designing an effective court system.  Courts are supposed to be somewhat un-democractic, inaccessible institutions, as these characteristics shield the judiciary from the influence of majoritarian politics.  Moreover, open air arguments make the Supreme Court look more like the floor of the House, and I think we should make every effort to give our legislative and judicial branches distinguishing characteristics.

Even if the interest in keeping things “democratic” were a valid interest the Supremes, I think that interest is overwhelmed by the loss in efficiency caused by oral arguments.  Without arguments, the judges could meet, confer, and start drafting decisions after receiving all the briefs.  Decisions would be rendered faster.  As a result, the Court might be able to hear more cases each year.  I think we’d get a higher degree of clarity from a more substantial caseload than we do from the few minutes of argument on each case that we have now.

Second, oral argument is supposed to help the judge better understand the nature of the case.  But as one judge said to me, “Good lawyers say everything in their briefs (so arguments aren’t necessary), and bad lawyers don’t have anything helpful to offer at arguments anyway.”  Even if the Justices did still have questions after briefing, they could get answers by requesting supplemental briefing.  Parties would then have an opportunity to actually research and carefully respond to the questions, rather turning good questions into “gotcha” moments at oral arguments.   As Justice Jackson (a former Solicitor General) explained:

I used to say that . . .  I made three arguments of every case.  First came the one that I planned — as I thought, logical, coherent, complete.  Second was the one actually presented — interrupted, incoherent, disjointed, disappointing.  The third was the utterly devastating argument that I thought of after going to bed that night.

I love the drama of oral arguments, and I was a moot court nerd to the extreme.  But when it comes down to it, the judge is going to return to those briefs to figure out what goes in the opinion.  Maybe oral argument has just become face time for our diva Justices.  Maybe it’s time for it to go.

-Michael