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IV. Conclusion
hy make an advocacy shift, then, if not because attorney materials are free and casebooks are not, or because the Court itself asks for these as blueprints to help it construe our Constitution? Looking more closely at lawyering corrects, at least fractionally, several ways we understand our Constitution. The shift reveals more fully the process of lawyering and judging. It is the adage that “if a man would be a soldier, he’d expect of course to fight.” Future lawyers learn best by listening to other lawyers win and lose.134 An advocacy focus also counteracts tendencies to reduce law to typecasts of judges, to enlargen it to overcomplex doctrine, or to understand it as immutable principle—three generalizations that misdirect towards cynicism, “sportiveness of wit,”135 and incivility, respectively. Advocacy materials juxtaposed with outcomes reinforce a contrary law-sustaining truth: that cases, at all levels, are won by attorneys who show utmost frankness and assert positions of fact, law, and policy that judges come to trust.136 There may be no more exalted example of this axiom for interpretative success than these minutes of upending federalist argument, submitted by Attorney Abe Fortas, successfully seeking to overturn the perceived states-rights logic behind Betts v. Brady137 which deprived accused persons of appointed counsel except in special circumstances.138 Lessons in proficiency do not stop, of course, with this Article’s map of how adversaries try persuasively to assemble propositions of fact, law, and policy to impose a favored constitutional interpretation on us all. Smaller lessons abound. Arguments must be clear.139 Persuasion exists just in telling the Court that the actions under review ought to conform to earlier judicial decree.140 A first question is frequently a cocked pistol, prefiguring a constitutional outcome.141 Answers often must be given to questions that are hard to understand.142 One must anticipate opponents who will evade complexity with parables.143 A rebuttal rejoinder should be a final nail hammered in.144 Law professors indeed speak obscurely.145 And, as one more lesson among many, law allows laughter.146 134.See generally Edward H. Warren, Spartan Education (Houghton Mifflin Co. 1942) (discussing effective teaching methods for young lawyers). 135.1 Wilbourn E. Benton, 1787: Drafting the U.S. Constitution 30 (1986). 136.Cf. Recording of Oral Argument on Mar. 3, 2004, at clip 142, Sabri v. United States, 541 U.S. 600 (2004) (No. 03-44) (admitting “I don’t know” prompts Chief Justice Rehnquist to observe: “that’s a very candid answer”). 137.316 U.S. 455 (1942). 138.Hear Recording of Oral Argument on Jan. 15, 1963, at clip 143, Gideon v. Wainright, 372 U.S. 335 (1963) (No. 155), (“I believe that those [federalism] principles are misapplied here . . . because a true regard, in my judgment, Mr. Justice Harlan, for federalism here, means that this Court will lay down a principle, will establish a principle, and that this Court will not exercise the kind of minute, detailed, ex post facto supervision over state court trials that you have been exercising for these past years and which in my opinion is the most corrosive possible way to administer our federal-state system . . . . I should like to restate that very simply and very plainly, your Honor. I believe that Betts against Brady does not incorporate a proper regard for federalism. I believe that Betts against Brady, laying down as it does, the principle of case by case supervision by the federal courts of state criminal proceedings is antithetical to federalism. Federalism requires, in my judgment, if your Honors please, that the federal courts should refrain, so far as possible, from intervention in state criminal proceedings. And certainly that where intervention is necessary because of a constitutional principle that that intervention should be exercised in the least corrosive, the least aggressive fashion possible.”). 139.See, e.g., Transcript of Oral Argument on May 13, 1952, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Nos. 744, 745), reprinted in 48 Landmark Briefs and Arguments, supra note 1, at 958–59:
MR. JUSTICE FRANKFURTER: You say that I can go any time to pick all the apples and cherries I want, and I do not need permission to do that at any special time.
MR. PERLMAN: That is not the Government’s position.
MR. JUSTICE FRANKFURTER: Then I do not understand it.
MR. PERLMAN: I am sorry.
MR. JUSTICE FRANKFURTER: I am sorry, too.
Id. As valuable, lawyers must listen to lawyers who deftly recover from uncertainty, who do not over-promise, and who convey a true desire to clarify a point of inquiry. Hear, e.g., Recording of Oral Argument on Jan. 17, 1996, at clip 144, United States v. Virginia, 518 U.S. 515 (1996) (No. 94-1941) (understanding and agreeing with a question from the Court, the attorney asks to restate the question for clarification); id. at clip 145 (“I think that I am saying that, and if I’m not answering the question, I’m not understanding the question.”). 140.Hear, e.g., Recording of Oral Argument on Mar. 30, 1976, at clip 146, Jurek v. Texas, 428 U.S. 262 (No. 75-5394), vacated, 429 U.S. 875 (1976) (describing actions taken by the state to comply with the Court’s earlier decision); id. at clip 147 (“So I went over and worked. We tried to pour over Furman. We tried to understand it. What did Justice Berger say when he said he might not like a mandatory sentence. What was the right thing to do?”). 141.Hear Recording of Oral Argument on Nov. 8, 1994, at clip 148, United States v. Lopez, 514 U.S. 549 (1995) (No. 93-1260) (assessing whether in 1990 Congress had exceeded Commerce Clause powers for the first time in more than half a century, the Court’s purpose to recalibrate came in the first question); hear also Recording of Oral Argument on Apr. 19, 2000, at clip 149, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525) (in assessing whether Congress could overrule Miranda, the Court’s decisional answer was forecast by this opening observation that Miranda had been applied as a constitutional imperative against states). 142.Hear, e.g., Recording of Oral Argument on Apr. 3, 1962, at clip 150, Engel v. Vitale, 370 U.S. 421 (1962) (No. 468) (admitting to the Court that the attorney lost the question in the exchange); Recording of Oral Argument on Feb. 26, 1974, at clip 151, DeFunis v. Odegaard, 416 U.S. 312 (1974) (No. 73-235) (acknowledging that the attorney forgot the question, leading to “You have my permission to forget it.”). Cf. Transcript of Oral Reargument on Oct. 9, 1961, Baker v. Carr, 369 U.S. 186 (1962) (No. 6), reprinted in 56 Landmark Briefs and Arguments, supra note 1, at 691 (responding to an attorney comment that a question was difficult, the attorney is asked, “[d]o you want me to put you easy ones?”). 143.Hear Recording of Oral Reargument on Oct. 9, 1961, at clip 152, Baker, 369 U.S. 186 (No. 6) (commencing oral argument by comparing the Solicitor General with the priest and Levite who passed by the Good Samaritan). 144.Hear Recording of Oral Argument on Apr. 26, 2000, at clip 153, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699) (“If you have to dissect each butterfly in order to classify it, there are not going to be many butterflies left.”), hear also Recording of Oral Argument on Feb. 22, 2005, at clip 154, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108), (“[T]he four words I think that this Court should consider—and I’m not going to tell you the four since my red light is on.”). 145.Hear Recording of Oral Argument on Oct. 30, 1979, at clip 155, Rhode Island v. Innis, 446 U.S. 291 (1980) (No. 78-1076) (attorney cites a law review article proposing the “rationale approach” to Miranda, but quickly then is obliged to concede that, stripped of its academic phraseology, the article advocates an “overruling approach” to Miranda). Cf. Recording of Oral Argument on Jan. 17, 1968, at clip 156, Duncan v. Louisiana, 391 U.S. 145 (1968) (No. 410) (sharp questions to an attorney who claims an article was “cited,” “recognized,” and “used as authority” by the Court). 146.Acknowledging advocacy enlivens because lawyers balance the solemnity of judges. There are more than ten thousand “laughter” moments in the last decade of argument in the Supreme Court (easily searched on Westlaw’s SCT-ORALARG” database or Lexis/Nexus’ “U.S. Trans” databases), but scholarship discusses almost none. Beyond mere lightness, these moments are significant, often bearing out the maxim that “a joke’s a very serious thing,” hear, e.g., Recording of Oral Argument on Oct. 5, 1998, at clip 157, Mistretta v. United States, 488 U.S. 361 (1989) (No. 87-7028) (recovering from courtroom laughter about judges who “suffered an increase” in salary, the attorney discusses whether presidential appointment of federal judges to the U.S. Sentencing Commission might infringe independence), or, in other cases, that one step from the sublime indeed may be the ridiculous. Hear, e.g., Recording of Oral Argument on Nov. 29, 1976, at clip 158, Wooley v. Maynard, 430 U.S. 705 (1977) (No. 75-1453) (noting amidst courtroom laughter the irony that New Hampshire license plates “Live Free or Die” are made in state prisons). |
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