Convincing the Supreme Court

Adam Liptak’s article in Sunday’s New York Times, “Are Oral Arguments Worth Arguing About?” reminded me of an interesting and revealing experience I had years ago when I argued a case before the Supreme Court. Liptak’s point was that “it is the rare oral argument that wins or loses a case.” Results derive from the merits of the case, not the skill of the advocates, one expert told Liptak; indeed, the briefs play a greater role.

The discussion reminded me of my argument in a case about the right to a jury trial in contempt cases. The court had ruled “no” seven years earlier. But the composition of the court had changed; the issue was hot because of pending civil rights battles in which this subject was important. So the court accepted another case on the same subject — most unusual. Opposing lawyers, a solicitor general and I, along with a special counsel retained because of the importance of the issue, were given extra time to argue.

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My proud father came to observe the arguments. When we were finished, he took me to lunch. Father complained about the fact that in the middle of my argument, Justice William O. Douglas stood up and left, disappearing past the curtain behind the justices’ seats. He didn’t return for the completion of argument. “Doesn’t mean anything,” I explained, “he’s on my side.”

He was. Months later he wrote the court’s majority opinion, ruling 5-4 in my favor. I wish I could claim credit that my forensic skills made the difference from the earlier 5-4 ruling the opposite way. But the 5-4 change was the result of one judge replacing another. As one jurisprude wrote, the law is what the justices say it is.