fifty pages long) within forty-five days of the Court’s order that it has accepted the case. The respondent then has thirty days from the date of the petitioner’s filing to file its response brief. The petitioner may then file a reply brief as long as it is filed more than one week before oral argument.
What is oral argument?
Oral argument is the process by which attorneys come before the U.S. Supreme Court and present their case. The attorneys face questioning about the case from the individual justices. Rule 28 provides that generally each side is given thirty minutes for argument. The petitioner presents first and then the respondent follows. The petitioner can reserve some time for rebuttal after the respondent’s argument. Oral argument is important because it offers the advocates the only time with which to interact with the justices and persuade them to their points of view.
An artist’s sketch shows attorney John Gibbons presenting an oral argument in front of the Supreme Court justices in April 2004. Dana Verkouteren/AP Images.
The justices vary in how much they question the attorney-advocates. Justice Antonin Scalia is known for being quite vocal at oral argument, firing many questions at the attorneys. Justice Clarence Thomas, on the other hand, is normally quite reticent at oral argument. In most cases, he does not ask a single question.
What types of attorneys argue cases before the U.S. Supreme Court?
Most lawyers never argue a case before the U.S. Supreme Court. Some attorneys practice regularly before the U.S. Supreme Court as members of the Supreme Court Bar. The great Daniel Webster, a U.S. congressman and attorney from Massachusetts who lived from 1782 to 1852, argued nearly 250 cases before the U.S. Supreme Court. He was involved in many landmark decisions, such as Dartmouth College v. Woodward (1819), Gibbons v. Ogden (1824), and Charles River Bridge v. Warren Bridge (1837). John William Davis, who lived from 1873 to 1955, argued 140 cases before the U.S. Supreme Court, including Youngstown Sheet and Tube Co. v. Sawyer (1952) and Brown v. Board of Education (1954).
In the present-day, Tom Goldstein of Akin Gump Strauss Hauer & Feld LLP has argued sixteen cases before the U.S. Supreme Court by the time he was in his early 30s. His practice consists nearly entirely of U.S. Supreme Court cases. Other lawyers may argue one case before the U.S. Supreme Court, as they represented the litigant from the beginning of the case.
Those who serve as solicitor general, a position appointed by the president to argue for the United States, naturally argue many more cases than even those members of the Supreme Court Bar who regularly argue cases.
When does the Court hear oral arguments?
The Court generally hears oral arguments two weeks of every month from October through April. During the weeks of oral argument, the Court hears cases from 10:00 am to 12:00 pm E.S.T. on Monday, Tuesday, and Wednesday.
One of America’s greatest attorneys, Daniel Webster, argued nearly 250 cases before the U.S. Supreme Court. Brady-Handy Photograph Collection/Library of Congress.
After oral argument, when does the Court decide the case?
The Court meets in conference to discuss their initial votes in the case. The Court discusses the cases argued on Monday in its Wednesday afternoon conference meeting. For the cases argued on Tuesday and Wednesday, the Court discusses them in its Friday conference meeting.
The chief justice opens the discussions, outlining the applicable law and facts and his or her views of the case. This practice extends to all the justices in order of seniority. The justices also discuss how they plan to decide the case. The chief justice announces the vote. If the chief justice is in the majority, he or she assigns who will write the majority opinion for the Court. If the chief justice is in the minority, the most senior justice in the majority makes the opinion assignments.
There is no specific timetable for when the Court will issue its opinions, though in nearly all cases, the Court will issue a decision by the end of June. In a few cases, however, the Court will not issue an opinion and ask for re-argument. For example, the Roberts Court ordered re-argument in 2006 in the case of Garcetti v. Ceballos, a highly watched case involving the free-speech rights of public employees.
If the majority opinion becomes the law of the land, are concurring and dissenting opinions important?
Yes, concurring and even dissenting opinions can be important. Sometimes, the law will develop such that a concurring opinion will actually become the guidepost for future decisions in the area. A classic example was Justice John Marshall Harlan’s concurring opinion in the Fourth Amendment case Katz v. United States (1967). While Justice Potter Stewart wrote the Court’s majority opinion, Harlan’s concurring opinion and “reasonable expectation of privacy” test has become the opinion relied on by the majority of lower courts.
Types of Opinions
U nanimous opinion: An opinion in which all justices vote with the majority.
Majority opinion: This opinion, which must have five votes, is the ruling of the Court. It stands as precedent for future cases.
Plurality opinion: The main opinion of the Court but one that fails to command a majority of the justices. For instance, a case may have four justices agreeing with one opinion, two justices who file concurring opinions but not joining the other four, and three justices in dissent. In this 4–2–3 split, there is no majority opinion.
Concurring opinion: An opinion that agrees with the result but not the reasoning of the majority or main opinion of the Court. A justice who writes a concurring opinion may want to emphasize particular points of law or simply indicate that the main opinion reached the right result by taking the wrong path.
Dissenting opinion: An opinion that disagrees with the result of the majority opinion.
Per curiam opinion: An opinion rendered by the Court, or a majority of the Court, collectively instead of a single justice.
Similarly, dissenting opinions can be important, particularly if the U.S. Supreme Court overrules itself in a particular area of the law. A classic example of a dissenting opinion that became the law of the land was Justice Hugo Black’s dissenting opinion in the Sixth Amendment right to counsel case of Betts v. Brady (1942). The majority in Betts ruled that state courts did not have to provide an attorney to all indigent defendants charged with felonies in non-death penalty cases. However, the Court overruled that decision twenty-one years later in Gideon v. Wainwright (1963) and, in a remarkable irony, Justice Black had the honor of writing the unanimous opinion for the Court, taking the same position that he took in dissent in Betts.
Has the oral argument rule always provided for thirty minutes to each side?
No, the oral argument has not always been thirty minutes. In fact, oral arguments used to take several days in some cases. Many of the justices chafed under the process of hearing lawyers give speeches hour upon hour. In 1849, the Court adopted Rule 53, which set the time limit for each attorney at two hours each. If attorneys wished to argue longer than two hours, they had to petition for special permission. In 1925, the Court limited the argument time
