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The New York Times has reported that it is five years since the United States Supreme Court Justice Thomas last asked a question in oral argument. Justice Thomas’ silence has raised a debate as to the importance of oral argument in judicial proceedings. Oral argument is viewed as key to legal advocacy – but if lawyers make submissions to non-responsive justices then it suggests that their submissions could be as well made on paper as in person.
Jamal Greene, associate professor at Columbia Law School argues that ‘Oral argument is not a useless exercise. It is an occasion for the advocates to frame the stakes of their arguments in terms too easily obscured by the dense briefing they supply to the court in advance. It allows the justices to obtain direct answers from lawyers on questions the lawyers evaded, whether artfully or inadvertently, in their papers.’ In contrast, Vikram Amar, Professor of Law at the university of California states that oral argument is’ largely but not completely ceremonial’, but is part of the theatre of law in that it allows the public to see how the justice’s apply their minds to a legal problem.
Arguably, questioning the relevance of oral argument is more likely to occur in the US Supreme Court context that in the UK. In the US Supreme Court it is accepted that certain justices will always vote a certain way due to their known ideological predilections. Timothy R Johnson, a political scientist at the University of Minnesota stated in the defence of oral argument that ‘even justices predisposed to vote for a particular side…tend to vote more often for the side that offers better arguments in open court.’ That they should vote on any other basis then on the strength of the arguments before them may appear surprising to anyone familiar with the UK Supreme Court where the emphasis is on political impartiality and objectivity.
The New York Times debate illustrates that the United States Supreme Court is home to wider spectrum of political views and behavior then its UK equivalent. There is no justice on the UK Supreme Court bench who is the equivalent of Thomas’ ‘quiet judge’. At a push it might be said that Lord Kerr and Collins are the least interventionist justices and Lord Rodger and Brown the most. The debate in the Times also highlights the extent to which US Supreme Court justices are subject to scrutiny. It is difficult to imagine a national newspaper in this country running a series of pieces focused on the track record and behavior of one Supreme Court justice. This media focus is probably a result of the more political element of the US Supreme Court, it justices have always been more public, and sometimes more controversial, figures than in the UK. To take one slightly flippant example, John Grisham wrote the best-selling thriller The Pelican Brief around a plot concerning the appointment if US Supreme Court justices. It is unlikely anyone would ever write the UK equivalent.
The creation of the Supreme Court was intended to make the court more accessible and open, and bring the justices further into the public sphere. Despite a higher public profile it is unlikely that the justices will ever face the same media scrutiny that the justices in the US do, something for which they may well be grateful. However, with the main stream media increasingly interested in the Supreme Court and its occupiers (two programmes on the Court have been aired in the last month) it could be that the UK justices may need to look to their colleagues across the pond for tips on dealing with an increased media spotlight.
