The second reason for the importance of oral argument is the place it has in the timetable of the decisional process. The justices customarily take a tentative vote, at their Friday conference, on all the cases argued that week. The argument is likely to be fresh in their minds. Most members of the Court, Justice Jackson said, “form at least a tentative conclusion from it in a large percentage of the cases.” Moreover, a lawyer who at argument succeeds in arousing a strongly favorable interest on the part of even one justice thereby obtains for his cause a spokesman in the privacy of the conference room.
Given the significance of argument, its potential is realized far too infrequently. Many, probably most, arguments in the Supreme Court are dreary affairs. Counsel are often ill-at-ease, ill-prepared or—worse yet—overconfident. One of the worst sins is to brush off questions or answer them less than candidly. (On the other hand, Justice Holmes once complimented a lawyer on his candor and then, as the gentleman was preening himself, remarked: “You know, candor is one of the most effective instruments in deception.”) Another mistake is to take the lofty approach, arguing only large abstractions; such tactics inevitably produce glazed expressions on the bench. The justices seem more interested when a lawyer sticks to homely, factual arguments.
Often in their questions the members of the Court try to find out what the case means in human terms, as if in their ivory tower they were lonesome for the real world. Justice Jackson had a slightly different explanation for the Court’s fascination with the facts at arguments. “The purpose of a hearing is that the Court may learn what it does not know,” he said, “and it knows least about the facts. It may sound paradoxical, but most contentions of law are won or lost on the facts. They often incline a judge to one side or the other.”
It is said, correctly, that no oral presentation, however effective, is likely to be able to change the deep-rooted philosophical positions that a justice inevitably comes to hold after some years on the bench. But there are ways of getting around those entrenchments, of suggesting narrow grounds (which the Court almost always prefers) for a decision in favor of one’s client. There are also ways of alienating votes that should be favorable. Probably more cases are lost than won by argument.
The mediocre level of argument in the Supreme Court reflects the lack of a strong tradition of oral advocacy in this country. In England, by contrast, the appellate process is almost entirely an oral presentation. There are no briefs; counsel read out the relevant portions of the lower-court record and then discuss the legal questions, without fixed time limits, until their lordships indicate that they have heard enough. A successful barrister is by definition an effective oral advocate. But in this country many of the most prosperous lawyers never see the inside of a courtroom, and legal training emphasizes written work rather than oral presentation.
Our system was once much more like the British. There was a distinctive Supreme Court bar whose members—such men as Daniel Webster—appeared regularly before the Court. It was not unusual, moreover, for Webster to go on for days. But those spacious times are gone. The only lawyers who appear in the Supreme Court with any regularity are the Solicitor General and the members of his small staff, who argue most of the Federal Government cases. Many arguments are made by lawyers who will appear in the Supreme Court only once in their lives; when they get that chance, few are about to delegate the argument to some modern-day Webster. (Experience is not all; little-known lawyers from far corners of the country occasionally make superior arguments, the better for their freshness of approach.) And time for argument is now rigorously limited. Chief Justice Hughes was said by one of his law clerks to have “called time on a leader of the New York bar in the middle of the word ‘if.’ ” Ordinarily the Court allows either an hour or a half-hour to each side of a case. In the Gideon case each party had an hour, and the Court had taken the unusual step of granting an additional half-hour for oral argument by a friend of the Court on each side: former Solicitor General Rankin, on behalf of the American Civil Liberties Union, for Gideon, and Assistant Attorney General Mentz of Alabama, for Florida.
The argument presented no novel challenge to Abe Fortas, a man of experience and reputation in the Supreme Court. But to Bruce Jacob, who had never even seen the courtroom before, the prospect was unnerving. He flew to Washington on Saturday, January 12th, two days before the Clerk’s Office had indicated the case would be reached. The flight was bumpy, doing nothing to improve Jacob’s already queasy stomach. He spent the weekend in the hotel trying to anticipate questions he might be asked, worrying over his argument outline, worrying in general. Early on Monday morning he had another minor concern to dispose of: to arrange his admission to the Supreme Court bar. Anyone is eligible after three years in the bar of his state’s highest court. Membership qualifies one to file briefs and argue in the Supreme Court. Jacob barely met the three-year requirement, but under the usual practice he would have been admitted pro hoc vice, for this one occasion only, to make his argument.
About twenty-five hundred lawyers a year pay the twenty-five-dollar fee to become members of the Supreme Court bar, most of them presumably so that they can frame the parchment certificate and hang it in their offices; the Court uses the money to pay the expenses of indigents such as Gideon. Each applicant must be presented for admission, in open court, by a lawyer already a member of the Court’s bar, and this rule caused Jacob some unnecessary worry. Senator Holland of Florida had arranged to have former Solicitor General Rankin move Jacob’s admission. Jacob was afraid it would be embarrassing to have the favor done by one of his adversaries—an excessive sensitivity on his part—and he got George Mentz of Alabama to present him instead.
As he entered the Supreme Court building that Monday morning and then for the first time watched the justices at work, Bruce Jacob experienced the confusing change of emotions that any sensitive person feels in that curious place. For the Court is a place of contrasts, of paradoxes. It is grandiose and intimate, ritualistic and informal, austere and human—at the same time the most aloof and the most approachable of all the institutions of government.
Grandiose is the word for the physical setting. The W.P.A. Guide to Washington called the Supreme Court building a “great marble temple” which “by its august scale and mighty splendor seems to bear little relation to the functional purposes of government.” Shortly before the justices moved into the building in 1935 from their old chamber across the street in the Capitol, Justice Stone wrote his sons: “The place is almost bombastically pretentious, and thus it seems to me wholly inappropriate for a quiet group of old boys such as the Supreme Court.” He told his friends that the justices would be “nine black beetles in the Temple of Karnak.”
The visitor who climbs the marble steps and passes through the marble columns of the huge pseudo-classical façade finds himself in a cold, lofty hall, again all marble. Great bronze gates exclude him from the area of the building where the justices work in private—their offices, library and conference room. In the courtroom, which is always open to the public, the atmosphere of austere pomp is continued: there are more columns, an enormously high ceiling, red velvet hangings, friezes carved high on the walls. The ritual opening of each day’s session adds to the feeling of awe. The Court Crier to the right of the bench smashes his gavel down sharply on a wooden block, everyone rises and the justices file in through the red draperies behind the bench and stand at their places as the Crier intones the traditional opening: “The honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court.”
But then, when an argument begins, all the trappings and ceremony seem to fade, and the scene takes on an extraordinary intimacy. In the most informal way, altogether without pomp, Court and counsel converse. It is c
onversation—as direct, unpretentious and focused discussion as can be found anywhere in Washington.
“It was nothing like I expected,” Bruce Jacob said later. “It was so informal—I just couldn’t believe it. Usually judges are so sober-looking; they don’t laugh. Not that they’re inhuman, but they’re nothing like Supreme Court justices. I just got the impression that these men had a real good time, talking to each other and asking questions.”
The case of Gideon v. Cochran was not reached that day. Chief Deputy Cullinan always has counsel in Court earlier than necessary, so that there is no chance of a case ending early and no other being ready for the justices. There is no exact time for each case to start; the Court simply sits for argument from 10 A.M. to 2:30 P.M. (with 12 to 12:30 out for lunch), Monday through Thursday, and when one case is finished the next is called. Because this was a Monday, arguments were delayed for the reading of opinions. Then, at noon, there was a special interruption because the justices had to be at the Capitol to hear President Kennedy read his State of the Union message. Later that afternoon and the next morning, counsel in the Gideon case sat and listened with at least half an ear to the argument of an important antitrust case by two able advocates, Solicitor General Archibald Cox and Gerhard A. Gesell of Washington. They concluded at 11:06 Tuesday morning.
Chief Justice Warren, as is the custom, called the next case by reading aloud its full title: Number 155, Clarence Earl Gideon, petitioner, versus H. G. Cochran, Jr., director, Division of Corrections, State of Florida. From his desk at the left of the bench the Clerk of the Court, John F. Davis, said “Counsel are present,” and the lawyers in the Gideon case moved forward to two long tables just below the bench.
The justices are seated in an order fixed by tradition. At the far right (as seen by the spectators) was the newest member of the Court, Arthur J. Goldberg of Illinois, fifty-four years old, the gray-haired labor lawyer who had made such a dynamic Secretary of Labor before President Kennedy appointed him to the bench. At the far left was the other Kennedy appointee, Byron R. White of Colorado, forty-five, physically powerful but scholarly in appearance, as befits an All-American football hero who was also a Rhodes Scholar. Next to Justice Goldberg was Potter Stewart of Ohio, forty-seven but still collegiate in his good looks, whom President Eisenhower made a Court of Appeals judge and then raised to the Supreme Court in 1958. Second from the left was the smallish, brisk figure of William J. Brennan, Jr., fifty-six, a New Jersey Supreme Court justice who was a surprise Eisenhower appointee (because he was a Democrat) in 1956; he is the only Roman Catholic on the Court. On the right, again was John Marshall Harlan, sixty-three, a Wall Street lawyer picked by Eisenhower for the Court of Appeals and advanced to the Supreme Court in 1955, looking perhaps more like a judge than anyone else, appropriately enough for the grandson and namesake of an earlier Supreme Court justice. Third from the left was Tom C. Clark, also sixty-three, a friendly Texan, former Attorney General, the only Truman appointee (1949) still on the Court. To the right of the Chief Justice was William O. Douglas, sixty-four, a ruddy-faced outdoorsman from the state of Washington, a law-school professor and New Deal official appointed by Franklin Roosevelt in 1939. On the other side of the Chief was Hugo L. Black, seventy-six years old but still a tough competitor at tennis, hawk-nosed, with the soft sound of rural Alabama in his voice, a Senator when Roosevelt put him on the Court in 1937. Finally, at the center sat Earl Warren, seventy-one, a county law officer for twenty years, attorney general of California for four, an immensely popular governor for ten, Republican candidate for Vice-President in 1948; a huge, white-haired figure, named Chief Justice by Eisenhower in 1953.
The lawyer arguing a case stands at a small rostrum between the two counsel tables, facing the Chief Justice. The party that lost in the lower court goes first, and so the argument in Gideon v. Cochran was begun by Abe Fortas. As he stood, the Chief Justice gave him the customary greeting, “Mr. Fortas,” and he made the customary opening: “Mr. Chief Justice, may it please the Court.…”
This case presents “a narrow question,” Fortas said—the right to counsel—unencumbered by extraneous issues. The charge was a felony, not any lesser offense; Gideon’s indigence was conceded; he had unquestionably made a timely request for counsel, and the demand was for a lawyer at his trial, not at any earlier and hence more doubtful point in the criminal proceeding.
Fortas began reciting the facts. In his deep, deliberate, somewhat mournful voice, occasionally removing his horn-rimmed glasses and gesturing with them for emphasis, he told the justices about the morning Clarence Earl Gideon was supposed to have broken into the Bay Harbor Poolroom and stolen “some wine, perhaps some cigarettes and an unstated amount of money.” Fortas described Gideon’s active participation in his own trial, his attempts to cross-examine and address the jury. Then, on this brief foundation of the facts, he began to build his legal argument.
“This record does not indicate that Clarence Earl Gideon was a person of low intelligence,” Fortas said, “or that the judge was unfair to him. But to me this case shows the basic difficulty with Betts versus Brady. It shows that no man, however intelligent, can conduct his own defense adequately.”
At this point Justice Harlan intervened. He was the Court’s most convinced believer in the value of state independence, and Fortas had anticipated the greatest difficulty in persuading him to overrule Betts.
“That’s not the point, is it, Mr. Fortas?” Justice Harlan asked. “Betts didn’t go on the assumption that a man can do as well without an attorney as he can with one, did it? Everyone knows that isn’t so.”
In fact, it could be fairly argued that Justice Roberts, in Betts, had gone on exactly that assumption. He certainly had said that that particular trial was so simple that there would have been little for a lawyer to do. But Fortas, instead of challenging Justice Harlan’s proposition, accepted it for the implicit concession it was and used it to drive on to his point about federalism.
“I entirely agree, Mr. Justice Harlan, with the point you are making: Namely, that of course a man cannot have a fair trial without a lawyer, but Betts held that this consideration was outweighed by the demands of federalism.…
“My purpose was to show that this case is not Tweedledum and Tweedledee with one tried by counsel. I believe this case dramatically illustrates that you cannot have a fair trial without counsel. Under our adversary system of justice, how can our civilized nation pretend that there is a fair trial without the counsel for the prosecution doing all he can within the limits of decency, and the counsel for the defense doing his best within the same limits, and from that clash will emerge the truth?… I think there is a tendency to forget what happens to these poor, miserable, indigent people—in these strange and awesome circumstances. Sometimes in this Court there is a tendency to forget what happens downstairs.… I was reminded the other night, as I was pondering this case, of Clarence Darrow when he was prosecuted for trying to fix a jury. The first thing he realized was that he needed a lawyer—he, one of the country’s great criminal lawyers.…
“And so the real basis of Betts against Brady must be the understanding sensitivity of this Court to the pull of federalism.”
This last statement of Fortas’s seemed, for some not readily understandable reason, to anger Justice Harlan. This usually gentle man visibly reddened, leaned forward and said very sharply, “Really, Mr. Fortas, ‘understanding sensitivity’ seems to me a most unfortunate term to describe one of the fundamental principles of our constitutional system.”
“Mr. Justice Harlan,” Fortas replied without a flicker of emotion, “I believe in federalism. It is a fundamental principle for which I personally have the highest regard and concern, and which I feel must be reconciled with the result I advocate. But I believe that Betts against Brady does not incorporate a proper regard for federalism. It requires a case-by-case supervision by this Court of state criminal proceedings, and that cannot be wholesome.… Intervention should be in the least abr
asive, the least corrosive way possible.”
That was the argument that Fortas considered central to his case. He had expected to make it later in his presentation, after more of a build-up, but Justice Harlan’s question had given him the opportunity to make the point dramatically; as a skillful advocate he had abandoned his earlier outline and made the thrust at once. Whether the answer satisfied Justice Harlan was a question only the justice could answer, but he did lean back and appear somewhat happier.
Fortas traced the history of the right to counsel in the Supreme Court, beginning with the Scottsboro case, Powell v. Alabama, in 1932. He described the Betts doctrine and the subsequent cases in which the Court had or had not found the special circumstances requiring counsel.
“I have read all the cases now,” he said, “state and federal, and it is a fascinating inquiry. As I read the opinions of this Court, I hope I may be forgiven for saying that my heart was full of compassion for the judges having to review those records and look for ‘special circumstances.’ ”
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