degsme
Council Member
I'm a bit dissappointed in the media coverage of the Supreme Court Oral arguements on the PPADA (Healthcare Reform). While I applaud the broad coverage of what was said and the efforts to provide contextual meaning of what the various technical (term of art) phrases meant, there was generally a failure to explain WHAT the Orals part of the case means in the context of the overall decision making process. In fact I only heard one source get it right, and that was late in the evening in a wrap-up show, when most folks had already tuned out. (for a better understanding I recommend Toobins The Nine: Inside the Secret World of The Supreme Court http://www.amazon.com/The-Nine-Inside-Secret-Supreme/dp/0385516401).
Most of the coverage characterized the "Oral Arguments" as though this was a normal trial. In a "normal" (district court) trial, what comes out in "open court" is the full extent of the evidence presented and the argument of how that evidence fits together in a story. "Briefs" (formal documents submitted to the court providing positioning arguements on technical legal decisions) argue aspects an applicability of varios laws and rules. and those are evaluated essentially "behind the scenes". And the Judget and/or Jury make their decisions based on what they saw and heard in court.
THAT IS NOT HOW THE SUPREME COURT WORKS. That ia NOT the function of the Oral Arguements stage at the Supreme Court.
First of all, the Supreme Court does not hear any "evidence". The "evidence" relevant or not relevant to the case has been decided by the District Court and is provided to the Supreme Court through the filter of the Appellate Courts (who may strike down the admission of some evidence) via the court transcript of the original case and ruling.
Secondly, those "Briefs" that at the District Court level are typically arcane invocations of legal issues - largely based in Appeals Court and Supreme Court rulings and precedents - ARE THE CASE at the Supreme Court level. This is where the arguements are actually structured by both sides. They are detailed invocations of precedent, court record (the transcrip just mentioned), reasoning and arguement. (first the appelleant files, then the respondant, then both reply to each other)
Then there are the amicus Curiae "Friends of the Court" briefes. These are briefs similar to the above, but are not from either party that SPECIFICALLY has a direct interest before the court. Instead these are similar concoctions of precedent, record, law, reasoning and arguement - but written by individuasl or groups that feel they have something to contribute to the discussion. Essentially they are lobbying efforts by "special interest" groups who are interested in the outcome, but who have no direct participation in the case.
All these briefs get submitted to the Court within 105 days of the Court "granting a writ of certiorari" (aka "cert")". http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf
The judgets then read ALL of the briefs. Well ok in the case of the amicus briefs the judgets may well assign them to their "clerks" (really judges assistants who are elite lawyers in their own right) for summary and filtering and may choose to ignore the more wackadoodle Amicus briefs as irrelevant. For the PPACA - a RECORD NUMBER of Amicus briefs were filed 136 in all http://go.bloomberg.com/health-care-supreme-court/2012-03-15/record-number-of-amicus-briefs-filed-in-health-care-cases/. so its reasonable to assume that the clerks had some caffine fueled late nghts.
Note that at this point, the judges HAVE NOT MET TO DISCUSS THE CASE. Nor have they really done much discussion via email or other interoffice memos.
How any particular judge chooses to sort through all these briefs is really UP TO THEM. Many have their clerks draw up summaries of the arguments and the relevant laws and precedents. Some then have internal discussions within their office with the clerks, sorting through the arguements. But in general the justices come up with an idea of what the arguements are, what they have questions on, and how they are going to try and present the idea to THE OTHER JUSTICES.
THEN and ONLY THEN do we get the Orals. Notice that STILL AT THIS POINT. The justices HAVE NOT MET to discuss the case. Nor have they actuall heard from either side.
So during Orals, they have the opportunity to ask the questions that the briefs did not clarify. But ALSO - and more significanlty - the Orasl are a way for The Justices to highlight their own line of reasoning on this issues before the court. So that's why you typically see one or another justice either peppering one side, or helping another side with leading questions (which are not allowed at lower courts). It isn't necessarily that they are against that side or for the other - rather they are literally arguing with their benchmates THROUGH THE MECHANISM of the Oral Arguements.
That's why the orals from Scalia, and Alito matter so little. And what really matters is Roberts, kennedy and how the centrists on on the court, interact with the arguements and questions of those two. Because in essence those ae the two "swing" justices:
Then at the end of the week in which the arguement is heard, there s a preliminary meeting. at that meeting, the justices - in order of seniority - explain how they would rule and on what basis. given what they now know or have heard. ALMOST NO DISCUSSION takes place.
At that meeting the Chief Justice takes a preliminary vote, Identifies who the winning side is, and assigns a justice to write the opinion.
At that point each side (and each of the justices have the option to do so separately) writes their opinion and dissent. These are then circulated and argued VIA MEMO. And during this time is when you get some switching of the sides, some introduction of novel ideas and some of the more vitriolic dissents.
So the Orals really are not "The Case". They are the first, and largely LAST chance for the justices to argue WITH EACH OTHER over the case itself. But there is quite a bit of deliberation and legal arguement to be had after it. So to put too much emphasis on what is and is not said in Orals - is a bit like trying to figure out the sex lives of neighbors who argue loudly on their porch, but have a curtained and soundproofed bedroom.
Most of the coverage characterized the "Oral Arguments" as though this was a normal trial. In a "normal" (district court) trial, what comes out in "open court" is the full extent of the evidence presented and the argument of how that evidence fits together in a story. "Briefs" (formal documents submitted to the court providing positioning arguements on technical legal decisions) argue aspects an applicability of varios laws and rules. and those are evaluated essentially "behind the scenes". And the Judget and/or Jury make their decisions based on what they saw and heard in court.
THAT IS NOT HOW THE SUPREME COURT WORKS. That ia NOT the function of the Oral Arguements stage at the Supreme Court.
First of all, the Supreme Court does not hear any "evidence". The "evidence" relevant or not relevant to the case has been decided by the District Court and is provided to the Supreme Court through the filter of the Appellate Courts (who may strike down the admission of some evidence) via the court transcript of the original case and ruling.
Secondly, those "Briefs" that at the District Court level are typically arcane invocations of legal issues - largely based in Appeals Court and Supreme Court rulings and precedents - ARE THE CASE at the Supreme Court level. This is where the arguements are actually structured by both sides. They are detailed invocations of precedent, court record (the transcrip just mentioned), reasoning and arguement. (first the appelleant files, then the respondant, then both reply to each other)
Then there are the amicus Curiae "Friends of the Court" briefes. These are briefs similar to the above, but are not from either party that SPECIFICALLY has a direct interest before the court. Instead these are similar concoctions of precedent, record, law, reasoning and arguement - but written by individuasl or groups that feel they have something to contribute to the discussion. Essentially they are lobbying efforts by "special interest" groups who are interested in the outcome, but who have no direct participation in the case.
All these briefs get submitted to the Court within 105 days of the Court "granting a writ of certiorari" (aka "cert")". http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf
The judgets then read ALL of the briefs. Well ok in the case of the amicus briefs the judgets may well assign them to their "clerks" (really judges assistants who are elite lawyers in their own right) for summary and filtering and may choose to ignore the more wackadoodle Amicus briefs as irrelevant. For the PPACA - a RECORD NUMBER of Amicus briefs were filed 136 in all http://go.bloomberg.com/health-care-supreme-court/2012-03-15/record-number-of-amicus-briefs-filed-in-health-care-cases/. so its reasonable to assume that the clerks had some caffine fueled late nghts.
Note that at this point, the judges HAVE NOT MET TO DISCUSS THE CASE. Nor have they really done much discussion via email or other interoffice memos.
How any particular judge chooses to sort through all these briefs is really UP TO THEM. Many have their clerks draw up summaries of the arguments and the relevant laws and precedents. Some then have internal discussions within their office with the clerks, sorting through the arguements. But in general the justices come up with an idea of what the arguements are, what they have questions on, and how they are going to try and present the idea to THE OTHER JUSTICES.
THEN and ONLY THEN do we get the Orals. Notice that STILL AT THIS POINT. The justices HAVE NOT MET to discuss the case. Nor have they actuall heard from either side.
So during Orals, they have the opportunity to ask the questions that the briefs did not clarify. But ALSO - and more significanlty - the Orasl are a way for The Justices to highlight their own line of reasoning on this issues before the court. So that's why you typically see one or another justice either peppering one side, or helping another side with leading questions (which are not allowed at lower courts). It isn't necessarily that they are against that side or for the other - rather they are literally arguing with their benchmates THROUGH THE MECHANISM of the Oral Arguements.
That's why the orals from Scalia, and Alito matter so little. And what really matters is Roberts, kennedy and how the centrists on on the court, interact with the arguements and questions of those two. Because in essence those ae the two "swing" justices:
- Kennedy being the pivot in the 5:4 vote, and if the centrists can swing him to the center, the conservatives lose
- Roberts - in being the justice that helps drive towards consensus and who has a penchant for more narrow rulings
Then at the end of the week in which the arguement is heard, there s a preliminary meeting. at that meeting, the justices - in order of seniority - explain how they would rule and on what basis. given what they now know or have heard. ALMOST NO DISCUSSION takes place.
At that meeting the Chief Justice takes a preliminary vote, Identifies who the winning side is, and assigns a justice to write the opinion.
At that point each side (and each of the justices have the option to do so separately) writes their opinion and dissent. These are then circulated and argued VIA MEMO. And during this time is when you get some switching of the sides, some introduction of novel ideas and some of the more vitriolic dissents.
So the Orals really are not "The Case". They are the first, and largely LAST chance for the justices to argue WITH EACH OTHER over the case itself. But there is quite a bit of deliberation and legal arguement to be had after it. So to put too much emphasis on what is and is not said in Orals - is a bit like trying to figure out the sex lives of neighbors who argue loudly on their porch, but have a curtained and soundproofed bedroom.
