Are Oral Arguments Worth Arguing About?

 Posted on May 22, 2012 in DUI

Adam Liptak is the Supreme Court correspondent for The New York Times.A version of this news analysis appeared in print on May 6, 2012, on page SR5 of the New York edition with the headline: Are Oral Arguments Worth Arguing About?

SUPREME COURT advocacy is not usually a spectator sport, so it may have surprised Solicitor General Donald B. Verrilli Jr. when the reviews of his defense of President Obama’s health care law started to roll in.

“Donald Verrilli makes the worst Supreme Court argument of all time,” a blogger at Mother Jones wrote. A month later, Mr. Verrilli was back at the court, now asking it to strike down parts of Arizona’s tough immigration law. The Drudge Report’s assessment: “Obama’s lawyer chokes again.”

It is true that Mr. Verrilli coughed and stumbled a bit at the beginning of the crucial second day of the health care argument, and it is possible to imagine crisper answers than some of the ones he gave. He may have suffered in comparison with Paul D. Clement, a dazzling advocate who faced off against him in both cases. And Mr. Verrilli may have been thrown off his game by hostile receptions that he did not anticipate.

But the small band of lawyers who argue frequently before the Supreme Court say his performance was solid, conveying the points he was paid to make in sober and deliberate fashion. They added that much of the criticism misunderstood the nature of oral argument and the role of the solicitor general.

“Everyone in the entire Supreme Court bar has come to his defense,” Lisa S. Blatt, who has argued 30 cases before the justices, said of Mr. Verrilli.

A survey of Mr. Verrilli’s peers across the political spectrum confirmed her assessment. These lawyers had varying views of the health care law but agreed, as Miguel Estrada, a prominent conservative lawyer, put it, that the criticism of Mr. Verrilli was “uninformed and unjustified.”

Through a spokeswoman, Mr. Verrilli declined to comment.

If there was a flaw in Mr. Verrilli’s presentation, said Theodore B. Olson, who was solicitor general under President George W. Bush, it was the one of substance rather than style.

“It always looks bad when the justices aren’t buying what you’re selling,” Mr. Olson said. “Don had very, very difficult cases. That hand was dealt before he got there.”

The view from the legal academy is different.

“The solicitor general’s performance in the health care case was totally disappointing,” said Barry Friedman, a law professor at New York University who filed a brief urging the justices to uphold the law. “His answers were wholly inadequate.”

“You really needed gravitas,” Professor Friedman said. “But what he conveyed to the court was that the administration was uncomfortable with its own position.”

Be that as it may, practitioners and justices say it is the rare oral argument that wins or loses a case.

In an interview with Bryan A. Garner published in 2010 in The Scribes Journal of Legal Writing, Justice Clarence Thomas was asked how often he changed his mind thanks to oral arguments.

“Almost never,” he said, adding that they may make a difference for his colleagues “in 5 or 10 percent of the cases, maybe, and I’m being generous there.”

That is as it should be, said Mr. Estrada, who has argued 20 cases before the Supreme Court.

“Somewhat refreshingly to our citizens,” he said, “the administration of justice has to do with the merits of the case and not entirely to do with the skill of the advocates.”

Chief Justice John G. Roberts Jr., who argued 39 cases in the Supreme Court before joining it, told students at Columbia Law School in 2008 that lawyers play a relatively minor role in that highly stylized discourse.

“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” he said. “One of the real challenges for lawyers is to get involved in that debate.”

Oral arguments are in any event far less important than the written briefs.

“Of the two components of the presentation of a case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg told Mr. Garner. “It’s what we start with; it’s what we go back to.”

It was here that Mr. Verrilli and other government lawyers may have fallen short, Ross Guberman, the author of “Point Made: How to Write Like the Nation’s Top Advocates,” told Scotusblog.

“Compared with Mr. Clement’s brief, the style is wonkish and a bit stiff: after a while, even the most assiduous reader might find it tough going,” he said of Mr. Verrilli’s submission. “The tentative quality of some of the writing suggests that the government might have struggled over the substantive strategy it should adopt as well.”

That was probably a consequence of trying to satisfy the wishes of myriad government agencies and the White House. Mr. Verrilli also had to keep half an eye on the future.

“Anyone who knows about government litigation in the Supreme Court understands that he had to try to reassure the court without foreclosing what the government might want to do in the future,” Mr. Estrada said. “That is extremely difficult to do, but striking the right balance does not turn on whether one looks good doing it.”

Mr. Verrilli gave a rambling answer, for instance, to a request from Justice Samuel A. Alito Jr. that he describe the limits of Congressional power “as succinctly as you possibly can.”

But Ms. Blatt said that response could well have been calculated. “It may be,” she said, “that there was a strategic decision not to give a crisp and clear answer.”

Mr. Verrilli is not alone in emerging from a Supreme Court argument a little bruised, said Thomas C. Goldstein, who founded Scotusblog and argues frequently in the Supreme Court.

“The court’s conservatives are incredibly effective questioners,” he said, meaning that “your take-away from the argument is going to be that the advocate for the more liberal side just wasn’t as good.”

At the conclusion of the argument in the case about Arizona’s immigration law, the last of the term, Chief Justice Roberts did something unusual: he praised the lawyers before him. The gesture was widely interpreted as a defense of Mr. Verrilli.

“Thank you, Mr. Clement, General Verrilli,” the chief justice said. “Well argued on both sides.”