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

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.

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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Comments (6)

  1. Submitted by John Edwards on 03/26/2012 - 11:04 am.

    Is there a point to this article?

    The only thing I can detect is that liberal Judge Leben, appointed by then Kansas Democratic Gov. Kathleen Sebelius, and liberal Judge Burke, appointed by DFL Gov. Rudy Perpich, are fearful that Justice Scalia and other non-liberal judges hearing the case might asked some penetrating questions about the law that essentially gives Sebelius, now U.S. Secretary of Health and Human Services, massive and unilateral authority in implementing.

  2. Submitted by Paul Landskroener on 03/26/2012 - 11:42 am.

    Cameras in courtroom

    Given the abysmal quality of legal reporting in most of the media, I understand completely why the Supreme Court is reluctant to broadcast its oral arguments. While highly entertaining and often instructive to us lawyers, they offer very little understanding to the general public and would only reinforce the insideous belief that judicial decisions are “merely” political in nature with judges simply voting for the outcome they want and making up the reasoning later. There is too much truth to that conclusion as there is without reinforcing it with out-of-context Q&A.

    Most lawyers believe (and as a former appellate-level law clerk I tend to agree) that oral arguments are rarely decisive — my judge’s adage was that she’d never seen a case won on oral argument but she’d seen a couple of them lost — in that the judges generally come into the courtroom with a decision already tentatively in mind based on the briefing. Oral argument offers judges the opportunity to ask claifying questions or test positions, but rarely do they make any difference in the outcome of the case — and this is even less so where the level of briefing is a high quality as it is in the US Supreme Court.

    An experienced reporter is much more capable than a layperson of explaining what the salient questions and answers were, and there is nothing of value lost by having to wait to hear Nina Totenberg report the afternoon or morning after the argument, and nothing of value whatsoever lost by listening to the taped argument a few hours later.

    The real interesting discussion — which we will never see or hear — takes place in the conference following the oral argument where the judges state their position, vote, and try to influence the content of the opinion (as contrasted to the decision itself).

    The authority of the law — if you are willing to believe that it is anything other than politics, which I am old-fashioned enough to believe — requires a certain symbolic reinforcement in order to maintain psychological force. It’s therefore important that a certain amount of mystery maintained. Of course, if you don’ t believe that there is anything unique about the law that distinguishes it from (and elevates it above) ordinary political discourse and power, then there’s no reason to maintain the fiction. I understand why some feel that way (see Bush v Gore), but I’m unwilling to give it up altogether.

    • Submitted by Logan Foreman on 03/26/2012 - 04:31 pm.

      This Supreme Court

      Is rightfully viewed as a right wing politicized body since Bush v. Gore and moreover after Citzens United. If the healthcare act is overturned, that will be the trifecta. As you know, the Court has accepted the commerce clause reasoning to allow almost everthing the federal gov’t mandates. Such a trifecta would prove to be a direct attack on the middle class because health care insurance will not be available to the middle class except at great expense.

      • Submitted by Steve Hoffman on 03/26/2012 - 07:39 pm.

        Supreme Court predictions

        I have long since realized that I can predict, from a one-paragraph summary of any case to be argued before the Supreme Court, EXACTLY how Clarence Thomas will rule (for example, in this case he will argue that the whole health-care reform effort is unconstitutional). Just think how much money the US could save by firing Thomas and letting me write his opinions! I could do it in my spare time, gratis, and we wouldn’t even have to wait for the arguments to be presented.

  3. Submitted by fred rodgers on 03/27/2012 - 10:26 pm.

    Is there a point to this article?

    John Edwards’ post “Is there a point to this article” rhetorically impugns the thoughtful views of Judges Leben and Burke by connecting their comments to the supposedly liberal-minded governors who appointed the authors to their judicial positions under the merit selection system of choosing judges Let Mr. Edwards explain President Eisenhower’s stake in the outcome of important cases decided by the Supreme Court as part of the “criminal justice revolution” of the 1960’s –Brown v. Board of Education, Gideon v. Wainwright and Miranda v. Arizona, for example–in which the leadership of the Court consisted of his appointees Earl Warren and William Brennan.

  4. Submitted by Jon Kingstad on 03/29/2012 - 08:20 pm.


    Is my only question after reading this article. After 35 years of law practice, I have run into very, very few judges with humility. I could count them on one hand. This only gets worse the higher one gets on the pecking order with the Supreme Court at the apex. I don’t sense there is much downside, as we saw with Bush v. Gore. I’d like to believe the authors who I think are well intentioned and thoughtful. The Justices who rule so will not be impeached and removed as they will deserve to be. There will be no plan to pack the Court as Roosevelt did in 1937. If this Court invalidates the ACA, which I always felt was a huge and unnecessary compromise to begin with, is that the end of the road for health care reform in the US? I think so in my lifetime. The moneyed interests in this country have won. We are a plutocracy.

    I think we have wrung about all we can out of the 18th century document known as the Constitution. This document, which started out with promise as a blueprint for a young and small nation, has become a straightjacket for practical governance. Its utility as a practical document for governing has diminished in inverse relation to its being revered as some sort of holy writ. Because it’s become impossible to amend, we are left with leaving it all up to interpretation by nine pompous super-politicians who believe themselves to be and are accepted by the hoi polloi as oracles. I could just cry it is so sad.

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