This week at the Supreme Court: In Plain English

By Lisa Tucker
on Apr 29, 2011 at 7:24 pm

Well, that’s all she wrote.  In terms of oral arguments, at least,October Term 2010 has reached its end.  As I wrote last week, over the next two months, the Justices will only enter the courtroom to announce orders and opinions (of which there are still over forty coming down the pike). 

But before we get to our discussion of oral arguments, let’s talk about arbitration, class actions, big business, and health care.  This week, the Court issued two opinions, including one in one of the Term’s biggest cases, AT&T v. Concepcion.  As I explained when the case was argued back in November, the case concerned a cell phone contract that prohibited plaintiffs who had a dispute with AT&T from bringing class actions, or joining a group of plaintiffs together.  At issue in this case as well was the concept of arbitration, an alternative to formal trials that many litigants prefer because it is usually cheaper and faster than going through the court system.  With the Court split among traditional ideological lines, a “bare majority” of the Court (or five Justices) decided that, under the Federal Arbitration Act, contracts requiring plaintiffs to waive their rights to form a class in an arbitration proceeding are enforceable, because the federal law “preempted” (or trumped) California state law allowing such actions. 

Those interested in corporate rights were watching this case closely; many view the Court’s holding as protecting businesses from class action suits in general, because companies can contractually require customers to submit to arbitration if a dispute arises, then add in a contract clause requiring all such arbitration proceedings to be brought individually, not as a class action.  In light of AT&T’s promises that its arbitration process is easy and customer friendly, that approach may sound reasonable (and, in fact, such a provision has become fairly standard in consumer contracts).  But, as the dissenting Justices noted, class actions are a good way for individuals with small claims to seek compensation because it allows them to come together, bring one big lawsuit (depending on the number of plaintiffs, often worth a significant amount of money), and find an attorney to represent their interests – something that might be difficult, the dissenters commented, when (as here) an individual claim is for only around thirty dollars.   

Probably the other most notable moment of the week, at least in the news?  The Court’s denial of cert.  in Virginia v. Sebelius, a challenge to the new federal health care law.  While a number of people have told me they are confused by this – after all, they’ve heard that health care is likely to reach the Court – Court watchers were not surprised.  Why?  Because disputes over the constitutionality of the law should properly proceed through the lower courts first.   After at least one federal court of appeals decides the issue, however, most people in the know agree that it is quite likely that the Court will indeed grant cert.  In other words, it’s not that the Court doesn’t want to hear the issue; it’s that a case involving such a challenge has not fully made its way to Supreme Court review.   When it does, as Adam Liptak noted in the New York Times this week, Justice Kagan will probably participate in deciding the case (and, indeed, apparently participated in deciding whether to grant cert., as no recusal was noted in the order denying it); during her confirmation process, she said that she was only tangentially involved with any discussions involving the issue while she was Solicitor General. 

As I said earlier, oral arguments are over for the Term.  Over the last few months, however, I’ve gotten several questions from readers about why the Court even hears oral argument.  Do the arguments really make a difference?  Does a seasoned oral advocate (who presumably can perform better at the Supreme Court podium) have a better chance of convincing the Justices than a first-timer?  And don’t the Justices really decide the cases based on the briefs (written documents attorneys file with the Court), or ideology, or some combination of the two?

In fact, many Justices have commented that oral arguments do make a difference, because they represent an opportunity to explore concepts and hypothetical situations that the lawyers just cannot fit into a fifty-page brief.  As I discuss in more depth here, most Justices acknowledge that they are sometimes on the fence about a case, and oral argument helps them make up their minds, especially to the extent that they can ask advocates questions about perceived holes or difficulties in a case. 

Not all Justices agree.   Justice Thomas has stated unequivocally that asking questions at oral argument is not helpful to him in deciding a case – but even he sees the value in listening to advocates explain their cases. 

As to the question about whether an experienced Supreme Court lawyer is more likely to win at the Court, the answer is certainly “yes.”  That success rate, however, stems from many factors of which oral argument is only one; members of the Supreme Court “bar” (a small group of attorneys who argue regularly before the Court) are more savvy about Supreme Court strategy (including the types of arguments that are likely to appeal to the Justices) and are more likely to have excellent written advocacy skills, especially of a specialized type that is particularly persuasive to the Justices.  Finally, those elite lawyers who practice largely or mostly before the Court have the gift of time; because they focus so heavily on a few cases each Term, they can pour weeks, even months of preparation into a case, whereas most lawyers juggle many more cases and clients at a time. 

Now that we are entering the last several weeks of the Term, we are likely to see several opinions a week, especially in June.  I’ll be here each week to discuss them all . . . in Plain English.