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.
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.