Infrequently asked questions.

• Author: Swaine, Edward T.

ABSTRACT

If appellate advocates could hear from courts about topics that might be raised during oral argument--as opposed to relying solely on their ability to anticipate the issues--might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position--questions that help decide the case, either due to the quality of the answer or the question's effect on other judges--and all would be better served by advance notice to advocates that specific issues might come up during oral argument.

This article doggedly pursues this simple but important proposition. It explores contemporary conditions that increase the value of preliminary questions, the empirics of their present (and limited) use, and the most compelling circumstances for employing them, illustrated primarily through missed opportunities in recent Supreme Court cases. Preliminary questions interrogate the traditional view of argument--itself fairly recent, and persisting despite erosion of its preconditions. But the potential for preliminary questions to improve judicial communication and deliberation is too compelling to leave muted. The article concludes with a mooting of the proposal.

1. INTRODUCTION

   The three wise monkeys--pictured avoiding evil by covering their eyes, ears, and mouths--show the plasticity of symbols. Once the monkeys might really have symbolized rectitude or probity. (Imperfectly, of course, since they shut out virtue along with evil.) Nowadays, they symbolize foolish obliviousness, like ostriches burying their heads in the sand. (1)

   Our courts are a little like the three wise monkeys. Courthouse statues are the obvious comparison; perhaps because Lady Justice's self-restraint is more modest--only her eyes are blindfolded, not her mouth or ears--she still connotes impartiality more than its caricature. (2) The comparison gets a bit more pronounced in the Supreme Court and the federal courts of appeals. Proceedings begin with a blinkered view of the world, mostly confined to the record below, and conclude with the delphic pronouncement of opinions. Even the hubbub of oral argument--coincidentally presided over by three or more judges--is somewhat misleading. Judges often (but not always) interact with counsel, (3) but this is often thought to disguise a conversation among themselves. Some courts even ban cameras because it prevents both counsel and judges from speaking to (and performing for) the public at large. (4) If these norms limit what judges see, hear, and say, it raises the question of whether judges, like the wise monkeys, can appreciate what's being missed.

   This article attacks one such norm, that confining oral argument to questions unveiled by the court at argument and addressed impromptu by counsel. (5) That practice makes for better theater, or hazing, but deserves reconsideration. The Supreme Court and the federal courts of appeals should speak more often, and could then listen more constructively, by judiciously informing parties in advance about particular issues the court might raise at oral argument.

   While this idea is simple, such preliminary questions are quite unusual, particularly in the Supreme Court, and their potential virtues and the appropriate occasions for their use, have not been assessed. The time is ripe. There is a resurgent academic interest in oral argument, along with other aspects of judicial administration, (6) but analysis is often descriptive or veers toward the despairing or Utopian--accepting the slow demise of oral argument or yearning for a return to days of yore. (7) Given the potential (but unfulfilled) centrality of oral argument to judicial decisionmaking, more modest, pragmatic, and incremental change deserves consideration.

   Part II provides a brief background on the evolution of oral argument. Part III describes the role preliminary questions might serve, including their present use and contemporary examples of when they might have been consequential. Part IV subjects the proposal to its own mooting. Part V concludes. A quick word on scope: The focus is on federal appellate practice, particularly in the Supreme Court, where the problem is clearest and a cure most easily implemented, but similar initiatives in state and other courts--which are already more innovative (8)--would also be welcome.

2. THE EVOLVING NATURE OF ORAL ARGUMENT

   Once upon a time, oral argument in the United States was a counsel-driven exercise. Over time, judges seized the reins, and now preside over a bar of extraordinarily talented advocates--including via practices that make advocacy more difficult and less useful.

   1. The Supreme Court

      American courts initially followed England in eschewing written submissions, making oral argument the mainstay of their decisionmaking. (9) In the Supreme Court, legends like William Pinckney, William Wirt, and Daniel Webster could talk for days, (10) but lawyers could also swap in and out like segments of the Pony Express. (11) Such performances were both marvelous and intolerable. As the Court's caseload increased, lengthy arguments prolonged its term, (12) but little could be done about it; arguments were indispensable for a judiciary without staff or library. (13) This also meant that advocates, whether good or bad, had the Court at their mercy, (14) and Justices sat inert during proceedings over which they lacked meaningful control. (15) (They snuck away in shifts to take lunch, but stayed within earshot of counsel, who kept talking, sometimes over the audible clatter of forks and knives from behind the curtain. (16)) The Court's passivity even gave one Golden Age advocate the perceived license to approach the bench, mid-argument, and take a pinch out of a startled Justice's snuff-box. (17)

      As the judiciary's stature, and workload, increased, it encouraged briefing and clamped down on the monologues. The Supreme Court, like some state courts, had long required some kind of written submission; changes adopted in the 1830s actually encouraged parties to submit cases on the pleadings, which suggested that oral argument was not sacrosanct. (18) Other reforms followed. During the nineteenth century, the Court adopted rules that limited each side to four hours of argument, and after that two hours; by the early twentieth century this had dropped to an hour, and the Court created a summary docket that capped less challenging cases at thirty minutes per side; since 1970, that has been the default across the board. (19) With occasional exceptions, (20) today's counsel get only the time allotted the easiest cases of a hundred years ago--about the time that it took Daniel Webster to clear his throat. (21)

      More written submissions, and less air time, naturally affected oral argument's character. Counsel spent less time educating courts on the basics, and a better-prepared bench asked that counsel accommodate questions too. (22) Reports of Justices interrupting argument increased after the Civil War. (23) By the mid-twentieth century, modern argument had more or less arrived, and it was not universally acclaimed. Argument before Chief Justice Hughes (rumored to have cut off one attorney in the middle of "if), Justice Frankfurter (credited with squeezing ninety-three questions into one case), and their contemporaries was criticized as being closer "to the quiz programs on television than to the magnificent speeches" of yesteryear. (24)

      This evolution was hardly limited to the Supreme Court, but two of its features deserve special mention. The first is how questions are put to, and by, the Court. As oral argument was cut to one hour per side, the docket shifted to certiorari jurisdiction, giving the Court tremendous discretion as to which cases and issues it entertained. (25) While the certiorari process enhanced the role of the parties in framing the issues for possible review, (26) it simultaneously provided peeks into the issues in which the Court was interested: ordinarily, those proposed by a successful petitioner, but sometimes issues that the Court culled from the petition or decided to reframe for itself. (27)

      A second noteworthy feature of the Supreme Court is, once again, its bar. In the popular account, the Court's early indulgence of oral argument was encouraged by the preternaturally gifted lawyers of the day, (28) though others stress the small size and uneven quality of that era's bar, (29) and complaints about quality did eventually become commonplace. (30) Today, at any rate, elite Supreme Court specialists ensure that many cases are briefed and argued to the highest professional standards. (31) Their proficiency has enabled the Justices to adopt a demanding, even dizzying, style of inquiry that puts non-specialists at a definite disadvantage. (32) Even for regulars, the limits may be glimpsed--counsel can find it difficult to respond to torrential questioning (33)--and Justices, too, have complained about the difficulty in getting questions in edgewise. (34) Justice Thomas, among others, has suggested that advocates are left with ever-dwindling scraps of time in which to present their own arguments; (35) although his long stretches of silence have drawn criticism, (36) they have the virtue of preventing a graver shortage of airtime.

   2. The Federal Courts of Appeals

      Trends in the federal courts of appeals are similar but more daunting. The length of time allowed counsel at argument now averages fifteen minutes or less. (37) Even that number is largely hypothetical: By 2013, not even twenty percent of the cases resolved on the merits by the federal courts of appeals received any oral argument at all. (38) Unlike in the Supreme...