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November Supreme Court Visit Criminal Oral Arguments

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In one of the hallways of the Supreme Court is a large information display about Justice Wiley Rutledge, whom the New York Times called at the time of his death “one of the kindest and most courteous of men” as was Justice Brennan.

My two-day marijuana trial was dismissed yesterday when the prosecutor was not ready for trial. As fortune would have it, this morning was then available to observe oral argument in two Supreme Court criminal cases today, which are Perry v. New Hampshire, whose petitioner seeks more safeguards to keep unduly suggestive witness identifications of suspects out of trial, and Gonzalez v. Thaler, covering certificates of appealability of habeas corpus cases from state court to federal court, and timeliness for filing for federal habeas corpus relief.

Here are some of my observations from my visit today to the Supreme Court:

  • In each oral argument, the United States Solicitor General’s Office was given ten minutes to argue on the side of the prosecution. The assistant solicitor general in Perry talked too fast. Less is more when arguing. A different assistant solicitor general argued in Gonzalez, and spoke in a comfortable and focused manner, and at an understandable pace. I, of course, am rooting for the petitioners in both cases.
  • Petitioner Perry’s lawyer several times called justices “Your Honor” in responding to their questions rather than “Justice ____”. On the one hand, it is not a big error. On the other hand, it stands out to suggest that the lawyer has not sat in on or reviewed many Supreme Court oral arguments, or else was just not switching gears from the other courts where he practices. I figure, though, that he had at least one excellent mock oral argument session offered to him including Supreme Court advocates who would have picked that out for Perry’s lawyer.
  • Justice Ginsburg’s speaking requires careful listening. Some justices spoke with their chins on their hands. Litigators must speak clearly.
  • When time was just about already up for petitioner Gonzalez’s lawyer Patricia Millett, minus rebuttal time, Justice Scalia ribbed (at best) Millett, apparently serving pro bono, for omitting the case’s key statute from anywhere but her cert. application. Ms. Millett has argued over two dozen times in the Supreme Court, so I was surprised to see her seem cowed and to sheepishly saying “I’m sorry” as she walked to sit down. A better answer may have been: “I agree and will make sure to remedy that in my next case before the Court.” Supreme Court oral argument is a hot seat, with the justices coming with no kid gloves. Justice Scalia’s and Brian Garner’s Making Your Case provides insights on dealing with that hot seat, including not watering down one’s best arguments, and responding to appellate judges’ repeatedly asking the same question about a lawyer’s position by responding “That is the best I can answer” if the lawyer has already given the best answer s/he can come up with.
  • At the Supreme Court cafeteria, I was sitting at a long table a few chairs away from Court Clerk William Suter. When I brought up the Perry oral argument, he said he expects the petitioner/criminal defendant will lose. I found it curious that the court’s clerk would make a forecast to a non-court employee about the case’s outcome. Then again, he does not have an effect on how the case is decided, and the oral argument shows a very uphill battle for the petitioner.
  • Justice Ginsburg may leave before the next president’s term ends. Obama is no gem, but his Supreme Court picks will be better than his opponent’s.
  • Five Korean trial judges were at the Supreme Court on an official visit, to later visit a Maryland trial court today. They all seemed to be in their thirties and forties. I kibitzed with them a bit with some of my limited Korean phrases, but mostly in English. I recommended not guilty verdicts to them.
  • On the ground floor of the Supreme Court are various portraits, head sculptures and information displays of various justices. I was most taken with the display about Justice Wiley Rutledge, whose grandson practices law in Hagerstown, Maryland. The New York Times at the time of his death called Rutledge “one of the kindest and most courteous of men” as was Justice Brennan.

Justice Rutledge called In Re Yamashita the Supreme Court’s worst opinion other than Dred Scott. He and another justice dissented in Yamashita, which allowed a postwar execution of a Japanese military commander on the orders of a non-lawyer military commission, apparently for atrocities carried out by his subordinates without Yamashita necessarily having known in advance of the atrocities.