Justice Ginsburg On Oral Argument And 'Imperious' Attorneys

Justice Ruth Bader Ginsburg Sits Down With Law360: Part 2

By Jacqueline Bell
June 15, 2017

By the time a lawyer steps to the lectern and utters the words "May it please the court" at the start of oral arguments at the U.S. Supreme Court, the battle is often largely over, at least for Justice Ruth Bader Ginsburg.

It's unusual for an oral argument to completely alter her thinking, Justice Ginsburg told Law360 during a recent conversation in her chambers. After an extensive review of the briefs, her mind at that point is "not closed, but certainly not totally open."

"We read all of these briefs, or at least all of the parties' briefs, we've read the decisions of the court of first instance and the appeals court," Justice Ginsburg said, turning in her armchair to point to the filings, carefully organized for each case. "So when you come to the oral argument, you're definitely leaning one way or another."

Law360 sat down with Justice Ginsburg in late May, just before she accepted Book of the Year honors for her recent collection "My Own Words" at the Burton Awards, an annual program that honors excellence in the legal profession. The justice discussed confirmation hearings, gender diversity and the role of collegiality, and shared her perspective on the value of oral arguments.

While an hour of questioning typically won't "turn a justice around 180 degrees," Justice Ginsburg said, the back-and-forth with attorneys can help the justices understand how they might be able to build consensus. For instance, the answer to a question might inspire a justice to rally colleagues around a narrower ruling than they had previously considered, and "leave the big question for another day."

But can she be swayed by an oral argument? Is it possible?

"It's rare," Justice Ginsburg said, after a pause. "It has happened — not even once a term."

May It Please the Court

Oral arguments at the Supreme Court have been part of Justice Ginsburg's professional life for decades now. Even before she began her tenure as an associate justice in 1993, she had long studied the court, both as a law professor and as a celebrated advocate for gender equality, a role in which she argued and won landmark cases.

Of the six women's rights cases she argued before the Supreme Court — cases including Frontiero v. Richardson, Weinberger v. Wiesenfeld and Califano v. Goldfarb — Ginsburg won five. In those groundbreaking cases, the Supreme Court for the first time began to strike down statutes that differentiated on the basis of gender.

"How fortunate I was to be alive and a lawyer when, for the first time in U.S. history, it became possible to urge, successfully, before legislatures and courts, the equal citizenship stature of women and men as a fundamental constitutional principle," Justice Ginsburg writes in "My Own Words," a collection of her writings and speeches from her youth through her years on the Supreme Court.

But the rhythm of oral arguments before the Supreme Court has changed since Justice Ginsburg, 84, was addressed as "Mrs. Ginsburg," or sometimes incorrectly as "Mrs. Bader," when she was welcomed to the lectern to present her arguments. Then, it wasn't unusual for the justices to listen to a counsel's argument without much comment. Now, the justices for the most part seem to seek out more of a back-and-forth.

"We have only one justice who doesn't ask questions, Justice Thomas, because he thinks the rest of us ask too many questions," Justice Ginsburg joked.

Question and Answer

The imposing architectural style of the Supreme Court, sometimes called the "Marble Palace," can seem daunting to an advocate hoping to sway the justices, but lawyers should try to avoid sticking to a formal script, Justice Ginsburg advised during the interview. 

"Don't come with a prepared spiel, because you won't be able to give it," she told Law360.
"Have a very well worked-out and memorized first sentence. And after that, appreciate that an argument is a conversation between the lawyer and the bench."

That's particularly interesting advice coming from Justice Ginsburg, who this term was most often the first justice to interrupt with a question while an advocate was trying to get through that first sentence, according to a Law360 analysis of oral arguments.

During April oral arguments in California Public Employees' Retirement System v. ANZ Securities, Justice Ginsburg interrupted Paul Clement, a former U.S. solicitor general and partner at Kirkland & Ellis LLP, just 19 seconds into his argument. In a separate case argued in December, Bethune-Hill v. Virginia State Board of Elections, she allowed Clement a generous 34 seconds of argument time before she asked the first question.

This approach to oral arguments differs from that most often favored when Justice Ginsburg was the one stepping up to the lectern. In the six cases she argued from 1973 to 1978 she got out much more than just one sentence before she was interrupted by a question from one of the bench's nine men.

In Frontiero v. Richardson, a case she argued in January 1973 as an amicus curiae on behalf of the American Civil Liberties Union, Justice Ginsburg made it through her entire prepared argument, nearly 11 minutes long, without one justice asking a single question. She began with "Mr. Chief Justice, and may it please the court," and ended with "Thank you."

That's an unimaginable scenario now, as most of the justices who currently sit on the court seem to relish oral arguments, and are given to peppering counsel with questions almost as soon as they step up to the podium.

This term, the longest any advocate spoke before the first interruption was 5 minutes and 30 seconds, but that example was certainly an outlier: The average was roughly one minute.  

"This court asks a lot more questions than it did in the '70s," Justice Ginsburg acknowledged.

"We have records for the most questions, the longest questions," she said. "[Justice Stephen] Breyer always wins the longest questions."

The Advocate's Role

In "My Own Words," Justice Ginsburg quotes the late journalist Anthony Lewis as saying, "Not many cases are won at argument, but they can be lost" there.

Oral arguments are an opportunity, a chance to help clarify a point or put to rest an outstanding question the court might have, she told a group of students in 2016, in a lecture included in "My Own Words."

An attorney who is nimble, who responds in a clear, honest and straightforward way to the judge's questions, and who stays "alert to opportunities to use a question as a springboard to advance a key point," will serve her cause best, she said in the lecture.

That rarified skill set is one frequently on display before the high court during oral arguments, Justice Ginsburg said.

"We have some excellent advocates, and when we have the luxury of the [solicitor general] appearing in so many cases, all of those people are at least good," Justice Ginsburg told Law360. "And now, more and more, on the side opposing the government, there are these boutique law firms.

"This term started out very well with two of my former law clerks arguing against each other," she added, referring to oral arguments in the criminal case Bravo-Fernandez v. U.S. "And they are both women."

To ask the question on everyone's mind, is there anything lawyers do at oral arguments that particularly irks Justice Ginsburg?

"There are a few people who are imperious," she said with a grin. "It should be, as I said, a conversation."

That conversation begins with the briefs, though. The shelves behind Justice Ginsburg are a testament to that fact, a mix of the colors mandated by the Supreme Court's regimented filing system.

Ginsburg's own amicus brief in Frontiero ran to 70 pages, arguing that legal distinction by gender is unconstitutional in a landmark case challenging a statute that prevented female service members from receiving the same family benefits as their male counterparts.

That 1973 case was her first appearance before the court, and her forceful advocacy helped win over the justices. The court handed down an 8-1 ruling in favor of servicewoman Sharron Frontiero, and it laid the groundwork for subsequent victories before the high court in the battle for gender equality that would play out over that decade.

Now closing in on her 24th year on the other side of the bench, it's clear she enjoys the process, whether or not the arguments end up changing her mind. Ever the law professor, Justice Ginsburg has a teacher's blunt advice for advocates before the high court: Do your homework.   

"The briefs are ever so much more important," Justice Ginsburg said. "Oral argument is fleeting."

This story is part of an ongoing series of exclusive Law360 interviews with current and former Supreme Court justices. Law360 is a sponsor of the Burton Awards, which honored Justice Ginsburg last month.