Oral Arguments

_____ Supreme Court History _____
Past Justices
Choosing Cases
Oral Arguments
Making Decisions
Historic Cases
Unlike the closed-door meeting the Supreme Court justices hold to select cases, the judiciary's next step is quite public. Oral arguments occur in the Supreme Court's stately, burgundy draped, gold-trimmed courtroom before a first-come, first-seated public audience. On Mondays, Tuesdays and Wednesdays, starting in October, the justices listen to lawyers present each side of two or three cases a day. In the 1980s, when the court accepted more cases, the justices heard arguments in four cases a day.

Supreme Court Public Chamber
In this courtroom lawyers have 30 minutes each to make their cases before the justices in the tall chairs by the red curtain. Visitors may watch. The frieze depicts Hammurabi, Moses, Confucius, Mohammed, Napoleon and other "law givers." (Photo by Frank Maroon)

Limited to 30 minutes each, one lawyer from each side makes his or her best arguments. The scene is tense and dramatic as the justices, wearing black robes and sitting in individually sized, black leather chairs, vigorously challenge the lawyers, sometimes consuming large parts of their time allotments.

Even experienced appellate advocates at times become flustered or freeze as they stand at the lectern below the long bench. Still, a lawyer's appearance before the highest court can be the highlight of a career. Lawyers have been known to frame and hang the white quill pens they receive as souvenirs.

"You don't have to be Clarence Darrow ... to successfully argue a case before us," Chief Justice William H. Rehnquist said in a speech. "But you do have to be prepared....And you must expect hypothetical questions posing slightly different factual situations from yours and be prepared to answer them."

When the justices pose different hypothetical situations, they are not necessarily trying to divert the lawyer. They are looking at ways their decision might be applied in the future. The justices also may use the occasion to influence other justices, bolstering one side and undermining the other.

While the give-and-take usually is dominated by arcane legal references, occasionally a case inspires the justices to use more common vernacular.

When they reviewed privacy issues surrounding a school district requirement that student athletes submit urine samples for drug testing, locker room life was topic A. Rehnquist referred to "guys walking around naked," and Justice Stephen G. Breyer said providing a urine sample might not be so intrusive since urination is a fact of life.

The lawyer representing a student who had protested the testing conceded that everyone indeed urinates. Then, in a break from decorum, the lawyer, facing tough questioning, blurted, "In fact, I might do so here." The school district won, 6-3.

For all their attendant drama, oral arguments are only one part of the decision-making process. There also are written briefs submitted by each side – the views of the solicitor general, who is the federal government's top lawyer before the court, and other amicus curiae, or "friends of the court."

Also, the justices review previous cases on a subject, prepare their own interpretations of the law or constitutional provision and sometimes, though rarely, turn to outside experts on the issue.

For example, one of the most controversial elements of the court's unanimous decision in Brown v. Board of Education (1954), striking down the "separate but equal" doctrine long used to justify school segregation, was then Chief Justice Earl Warren's reference to sociological and psychological studies. The studies concluded that segregated schools stigmatized children.

© Copyright 2001 The Washington Post Company

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