Mar 29, 2017 My visit today to Supreme Court criminal oral arguments
During each year’s United States Supreme Court term, I try to attend a morning oral argument session, which typically is on a date that got continued or resolved for one of my own court dates. Today, I hit the jackpot by hearing two particularly important criminal oral arguments, one on the prosecution’s duty to disclose Brady/exculpatory evidence to the criminal defense lawyer (Overton v. United States), and the next on the extent to which criminal asset forfeiture can result in making criminal co-conspirators jointly and severally liable through seizure of their legitimate assets for any dissipation of the forfeitable assets by another conspirator (Honeycutt v. United States).
The Supreme Court is where some (but not always) of the most able, well prepared and experienced appellate litigants appear before generally very well prepared Supreme Court justices. Lawyers will fly in from around the nation to observe a specific oral argument, and all I need to do is to drive fifteen miles to the Court.
This is the first time, since my first visit to the Supreme Court as a tourist in 1974, that I have seen the Supreme Court in session with only eight of nine seats filled. On February 12 or 13, 2016, long-sitting and very actively questioning (during oral arguments) Justice Antonin Scalia died.
Shamefully, the Senate refused even to hold hearings on President Obama’s March 2016 nomination of Judge Merrick Garland to replace Justice Scalia. The chickens have come home to roost, as a Democratic fillibuster — and threatened GOP “nuclear option” to bust the fillibuster — is threatened in an effort to get Donald Trump to nominate a more Democratic-acceptable nominee than Judge Neil Gorsuch.
Each president gets to make a decades-long mark on the federal courts, by nominating scores of federal trial and appellate judges who are appointed for life. That mark is particularly deep with Supreme Court nominees. Judge Neil Gorsuch, who undoubtedly would solidly join the Court’s remaining three conservatives — is Donald Trump’s first nominee to the Court, although apparently not as brilliant nor affable as Chief Justice John Roberts, who also is deeply conservative as a justice.
I hope that Justice Ruth Bader Ginsburg’s very slow walking off the bench today does not mean that her health is not good enough to weather the four years of Trump’s presidency so that a Democrat can nominate her replacement. Justice Ginsburg is eighty four, and has been very vocal about her displeasure with Donald Trump. Although justices deny that they wait to retire during the term of a president whom the justice wants to pick the justice’s replacement, if Justice Ginsburg was planning such a path and expected Hillary Clinton to be elected and to have no rush making such a decision, clearly such a gamble did not pay off.
Although I have not been enamored by any Supreme Court justice after Justices Brennan and Marshall left the bench, my current two favorite justices are Justices Ruth Bader Ginsburg and Stephen Breyer. They and the rest of the justices often rule in ways that exasperate me, but with that given, Justices Ginsburg and Breyer both are among the four justices (the remaining ones being Justices Sotomayor and Kagan) with whom I most often agree, and are at once very respectful towards litigants while being very hard working, devoted and insightful. On top of that, Justice Breyer — who was particularly impressive with his questioning today during the asset forfeiture oral argument — at last report engages in regular mindfulness practice.
Today’s oral arguments presented very well prepared lawyers who were very respectful to all. Without the late Justice Scalia’s customary and rapid-fire showman questioning, hearing oral argument was more of a pleasure.
During the Brady hearing, both sides heaped plaudits on local lawyer Michele Roberts — now the head of the NBA players association — who apparently represented a winning co-defendant in the case and testified at the subsequent post-conviction hearing for the defense. During the asset forfeiture case, the Justice Department lawyer — which is under Donald Trump, but which department has a tradition of having plenty of highly-skilled, non-political-appointee lawyers who stay above the political fray — repeatedly, and apparently genuinely, referred to opposing counsel as “my friend,” and his opposing counsel had not a bad word to say about his opponent. As I tell my clients, winning does not require making scathing remarks about the opposing lawyer, particularly when the opposing lawyer is not making such remarks to me nor trying to throw dirt in my eyes.
If you have not visited the Supreme Court during oral argument, I recommend the visit. If you are a lawyer eligible to join the Supreme Court bar (requiring a minimum of five years being licensed as a lawyer), you can join the Supreme Court Bar by mail, and then have priority seating in the front rows of the courtroom, and in the lawyers lounge (with the oral argument being amplified into the room) when the front seats are full.
Even after living in the Washington, D.C., area now for over three decades, when I walk the streets to and from the Supreme Court, I never stop being struck with all the major history — both good and bad — that has been made in this neighborhood, both in the Supreme Court and in the neighboring Capitol and surrounding Senate and House office buildings. That reminder is all the more important to me now as a reminder that as disastrous as was the election of Donald Trump (and Hillary Clinton is no prize, either, just much less disastrous than Trump), we will have judges and Congress members with the backbone to impose real limits on the actions and power of the White House and the executive branch.