In the Roberts Court, More Room for Argument

New York Times ^ | May 3, 2006 | LINDA GREENHOUSE

[RWR8189]

WASHINGTON, May 2 — This is the week that the Supreme Court, done with its regular argument sessions, enters the stretch run.

While it is too soon for substantive appraisals of the first year of the Roberts court, it is not too soon for stylistic observations about what is clearly, in the view of lawyers who have appeared there this term, a different court.

"The tone has changed," Prof. Richard J. Lazarus of the Georgetown University Law Center, where he runs the Supreme Court Institute and teaches a course on Supreme Court advocacy, said on Tuesday.

In common with every other Supreme Court specialist contacted for this article, Professor Lazarus listed several obvious changes. "They're not stepping on each other," he said of the justices. "They take longer before someone asks the first question. They give the lawyers more time to answer."

Beth S. Brinkmann, like Professor Lazarus a veteran of the solicitor general's office, who now represents private clients before the court, said of the new courtroom experience: "You sit there and think, 'Whoa, isn't anyone going to ask a question?' "

Carter G. Phillips, one of the most active current practitioners, said the change had been so abrupt as to be a trap for an unwary counsel. "You have to be ready now to make some kind of affirmative presentation" in the opening minutes of an argument, he said.

[Lunatic Fringe]

Wow, they let lawyers argue the law? What a "radical" court!!!

[RobbyS]

First rate jurist in charge.

[RobbyS]

First rate jurist in charge.

[Dog Gone]

Wow, that almost reads like praise for Roberts!

[Pikachu_Dad]

almost.

[Clintonfatigued]

The court would be improved even more if there were another liberal vacancy during Bush's Presidency.

[McGavin999]

I love this, I'll bet those after court conferences are interesting and lively. Law clerks will learn a LOT.

[monkapotamus]

"Can I pick one of my SMU classmates? Pretty please honey dumpling?"

[goodnesswins]

"When former Justice Sandra Day O'Connor was on the court, he recalled, she asked the first question so quickly and so predictably that there was little point in preparing an elegant opening argument. "Now you might get three or four minutes" without interruption, he said.

[WOSG]

The latter theory is unlikely; the court's ethos calls for signaling rather than rule-making. To the extent that the new chief justice is leading by example — and there is no doubt that he is in charge of the courtroom — he is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear. "Maybe it's because he has so much experience arguing before the court, but he seems to be able to zero in on the weakest point in a case," said Prof. Pamela S. Karlan of Stanford Law School, where she runs the Supreme Court Litigation Clinic.

ANother sign that Roberts is an awesome Supreme Court Justice. Thanks, President Bush for a gift that one hopes will be around for decades.

[dr_who_2]

Best to reserve judgement until we're certain that there won't be any more rulings based on foreign law or worse.

[mathprof]

The Greenhouse effect at work.

Linda Greenhouse is trying to get Roberts to crave the positive reporting of the great NYT court reporter.

[conservatism_IS_compassion]

ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.

. . . Chief Justice Roberts is reliably said to be presiding over the justices' private after-argument conferences with a lighter hand, not watching the clock as closely and permitting more conversation.

That might account for the changed tone of the arguments, Ms. Brinkmann speculated. "If you know you'll be able to make your point in conference, you don't have to make it on the bench," she said.

If you ask hard questions of both sides and allow full debate in conference after formal court session - and if the justice who always jumped in with the first question is retired - you get a more collegial behavior on the bench, and undoubtedly also in conference.

[conservatism_IS_compassion]

Linda Greenhouse is trying to get Roberts to crave the positive reporting of the great NYT court reporter.

Interesting take - that she's playing "good cop" now to make the contrast stronger when she turns critical on the substance of the rulings when they come out at the end of the term.

Interesting that she suggests that the process of closing out the term may be less hectic. Be interesting to see if the rulings flow out at a more steady pace as the term winds down.