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Supreme Court itself will be tested as it hears health-case arguments

Public attention will focus on the United States Supreme Court this week in a way that’s essentially unprecedented.

Demonstrators gathered outside the Supreme Court Monday morning in support of the health care reform law

Public attention will focus on the United States Supreme Court this week in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a presidential-election year. The health-care issues before the Court divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

Steve LebenJudge Steve Leben

In this environment, the Court will hold three days of oral arguments, beginning today, on issues surrounding the Patient Protection and Affordable Care Act — the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Perceptions may have lasting impact

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness — voice, neutrality, respect, and trustworthy authorities.

Kevin S. BurkeJudge Kevin S. Burke

Voice is simple to understand: Will the justices be patient and convey that they are interested in what the lawyers have to say? On this score, Justice Clarence Thomas, who has his own set of critics, arguably is exemplary. He never asks questions and sits attentively. On the other hand, silence is not typically considered golden at an oral argument; questioning is the natural and expected way a judge explores a party’s position.

Audio helps discern tone

The tone of a question is not always captured in a cold transcript, but will be revealed in audiotapes that will be made available afterward. The question “Can you explain?” can be said in a variety of ways and can covey many different messages about the questioner’s attitude and willingness to listen.

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Neutrality seems obvious but is harder to practice than one might think. Justices are well prepared. They thoroughly read the written submissions and are aided by very bright law clerks. Understandably, they may form some pretty firm views in advance of oral argument about the strengths and weaknesses of a party’s position. Still, we expect them to be neutral arbiters, not advocates. At oral argument, we would expect a neutral advocate to ask questions, not make the arguments.

Respect, which seems so elementary, isn’t as strong a part of the Supreme Court’s culture — at least in public — as it ought to be. Last week, when the court announced a 5-to-4 decision recognizing a constitutional right to competent counsel when a criminal defendant is offered a plea bargain, Justice Antonin Scalia not only issued a strong written dissent but also chose to read parts of it aloud from the bench, which is done only rarely. And his words did not seem respectful. He called the decision “absurd” and likened the majority’s view to “the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house.”

Wise judges have some humility

Former Rep. Morris Udall asked for “the wisdom to utter words that are gentle and tender, for tomorrow we may have to eat them.” Wise judges know this too; we are not always right, and sometimes in the course of a career on the bench we must admit this. Practiced respect for the views of others, combined with the humility that comes with the knowledge that we sometimes may be wrong, fits well with the public’s expectation of a respectful judge.

In addition to these aspects of procedural fairness, of course, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.

To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different from the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.

The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting 5½ hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing arguments in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.

Attitudes will frame perceptions

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Sen. John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Transcripts, audio to be expedited

Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28, (the only afternoon session), should be available by 4 p.m. that day.

This means that the public will be able to hear — the same day — the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in the blog at Procedural Fairness by Minnesota appellate Judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to this week:  “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”

Because of the media attention that will be focused on the U.S. Supreme Court this week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.

Steve Leben is a judge on the Kansas Court of Appeals and a past president of the American Judges Association. Kevin Burke is a judge on the Hennepin County (Minn.) District Court and the current president of the American Judges Association. Together with Yale Law School Professor Tom Tyler and researcher David Rottman of the National Center for State Courts, they recently founded a website devoted to improving fairness in courts,


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