For oral arguments at the Supreme Court, lawyers stand at a hand-cranked mahogany lectern. Before them on an elevated bench are the black-robed nine. Behind them in the colossal marble courtroom are rows of spectators. The chief justice calls the case number, the clock begins running and the struggle begins.
"It's enormously exciting--and very intimidating," said Theodore Olson, who recently argued his 12th case before the court.
"I love it," said Deputy Solicitor General Barbara Underwood. "It's the hard questions that bring out the best in the lawyer, and only answers to the hard questions have a chance of affecting the outcome."
The sparring so far this term has been especially intense and brisk. In their first round of arguments, the justices cornered the counsel, insisted they were "dodging" queries, and, in the fast-paced give-and-take, even upbraided one another for interruptions. A second round of oral arguments begins today as the court returns from a brief recess.
Just as the justices have their patented ways of unnerving a lawyer, the men and women at the lectern have their own strategies for staying on track. Here's what the pros do:
When the going gets tough, the tough say so. "That's a very difficult question," Solicitor General Seth Waxman said emphatically, when Justice Anthony M. Kennedy asked a question that went to the crux of campaign finance rules and free speech rights.
During another argument, Olson told Justice Antonin Scalia, "I'm not sure I'm understanding the question."
"The question's very easy," Scalia responded.
"It's the answer that's hard perhaps," Olson rejoined.
Humiliation is part of being there. Get over it. Missouri Attorney General Jeremiah "Jay" Nixon, like Waxman, was buffeted by difficult questions as he argued that the court should uphold Missouri's $1,075 limit on individual contributions to a political candidate.
"The argument is made here, and I suppose it's made everywhere," Justice David H. Souter said, "that the kind of statute that you have is one which significantly favors incumbents. Would you agree?"
"Your honor, I believe it disfavors corruption," Nixon declared.
"Well, that's a good statement, but it isn't responsive to the question," Souter said.
It was in that campaign finance case that Chief Justice William H. Rehnquist chastised Justice Ruth Bader Ginsburg for interrupting lawyer Bruce La Pierre, who was challenging the Missouri law as a restriction on free speech.
"Would you let him finish the answer to my question?" Rehnquist scolded.
"Yes, I'm sorry, chief," said Ginsburg, who'd been there before.
When pushed, don't back down. The justices constantly try to get advocates to capitulate. When John Gibbons represented a Virginia death row prisoner challenging his sentence, he argued that the court should adopt the judgment of "the experienced state trial judge and the experienced [federal] district court judge," who had ruled for his client.
"Well, what about the seven experienced judges on the Supreme Court of Virginia?" Rehnquist shot back.
"The seven experienced judges of the Supreme Court of Virginia committed legal error. The two trial judges got it right," Gibbons said.
After several minutes of questions from other justices, Rehnquist again pinned down Gibbons, suggesting his position might conflict with court precedent.
Gibbons stuck to his point, but said to the chief, "I realize you joined in an opinion at least hinting otherwise."
"Pretty strong hint," quipped the chief, and as Gibbons uttered, "You're wrong," the courtroom erupted in laughter.
Then there was the morning when lawyer Donald Cockrill, arguing that an environmental group should be allowed to sue a hazardous-waste company for pollution, referred to another kind of citizen lawsuit, known as "qui tam." Scalia interjected that the constitutionality of "qui tam" lawsuits has never been tested.
Cockrill agreed but began to explain that a comparison of the type of citizen lawsuits might help his case.
"Qui tam squared, you might say?" Scalia said.
"I'll agree with that, although I'm not sure I understand it," Cockrill said tentatively to Scalia.
To which Souter added wryly, "We have learned not to do that."