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When Oral Argument is A Crime:
Would you like to argue a case at the United States Supreme Court? If you get the chance, you better hope that the Justices ask you lots of questions and keep interrupting you. Why? Well, check out 40 U.S.C. 6134:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
That's right: It's illegal to make an oration in the Supreme Court building! So be careful out there, folks.
r78:
Was that passed as part of the Patriot Act?
11.8.2006 11:17pm
Syd (mail):
This means YOU, Antonin Scalia!
11.8.2006 11:27pm
Maniakes (mail):
set fire to a combustible

So no smoking?
11.9.2006 12:28am
Armen (mail) (www):
It's kind of funny but sad at the same time. You just gave the crazy arrested today the perfect defense.
11.9.2006 1:49am
Ship Erect (mail) (www):
So no smoking?

No, no candles on birthday cakes.
11.9.2006 3:03am
Hank:
The prohibition on "abusive" language violates the First Amendment because it encompasses more than "fighting words," which may be prohibited. It is, therefore, overbroad on its face, which means that even a person prosecuted for using fighting words should get off.
11.9.2006 5:25am
Falafalafocus (mail):
As a law clerk (state judge, not on SCOTUS) I always thought that oral argument was criminally wasteful of my time.
11.9.2006 8:13am
Anderson (mail) (www):
See? Justice Thomas has just been scrupulous in his strict construction of that law, uncommonly silly though it may be.
11.9.2006 9:11am
Huh:
ha·rangue Pronunciation (h-rng) n.


1. A long pompous speech, especially one delivered before a gathering.
2. A speech or piece of writing characterized by strong feeling or expression; a tirade.
11.9.2006 9:11am
j..:
That is fantastic.

Did yesterday's outburst during the abortion arguments spark your interest, Orin?
11.9.2006 9:45am
Q the Enchanter (mail) (www):
What about setting fire to a noncombustible?
11.9.2006 9:57am
abb3w:
Since it constitutes an overstepping of Legislative authority to so constrain the members of the Judiciary Branch, this law is clearly unconstitional prima facie. =)

I also suspect the "oration" part may violate the Right of Petition, as well as of Freedom of Speech, especially if the oration is phrased as a request for certiorari. However, IAmNotALawyer, and getting any judge (and perhaps eventually the SCOTUS) to rule that way might be a challenge.
11.9.2006 10:08am
Marcus1 (mail) (www):

As a law clerk (state judge, not on SCOTUS) I always thought that oral argument was criminally wasteful of my time.


It's probably less important for the Supreme Court, where you can at least be pretty sure they already know what's going on. Otherwise, I don't think people could trust that to be the case.
11.9.2006 10:31am
josh:
this wouldn't be the perfect example of the need to take into account the intent of the drafters, would it?
11.9.2006 10:53am
reneviht (mail) (www):
Yes it would, josh. The drafters clearly meant it to say "meringue."
11.9.2006 11:15am
Dave Hardy (mail) (www):
Pretty hard to harrangue during a Supreme Court "argument," which is a little more like a cross-examination in which the speaker is lucky to get two sentences spoken between questions.

One fellow told me he knew he was in trouble when he couldn't even get out the customary preface. It went like:

"Mr. Chief Justice, and may it please..."

Chief Justice: "Counsel, I have a question..."
11.9.2006 11:24am
Marcus1 (mail) (www):
"...utter loud...language"

Could mean trouble for the Oyez guy too.
11.9.2006 11:45am
Sasha Volokh (mail) (www):
If oral argument is a crime, let me be guilty.

By the way, getting interrupted is good, not bad -- it gives you a chance to address the justices' concerns. Pity the lawyer who gets to read his whole speech without interruptions. The lawyer's prepared speech, moreover, probably just repeats the summary of the argument from the brief, so anything he says that's not directly responsive to a question from the justices is probably a waste of time.
11.9.2006 11:45am
RMCACE (mail):
Someone just violated the law.

http://msnbc.msn.com/id/15628904/site/newsweek/

"Things proceeded normally enough for a while. But then, during the time allotted to Smith, the pro-choice lawyer arguing on behalf of Nebraska abortion provider Dr. Leroy Carhart, the man erupted. "ABORTION!" he thundered in a voice that reverberated in the quiet and still courtroom. "REPENT OR YOU WILL PERISH," he went on. He grabbed the arm of Carhart, who happened to be seated next to him and pulled him to the ground. The protester continued yelling as uniformed officers descended on him and dragged him from the room."


I think this s what the drafters had in mind (I hope).
11.9.2006 12:32pm
Sasha Volokh (mail) (www):
I was there. He was the only person in the room wearing a Jesus t-shirt. But I didn't realize he was sitting next to Carhart.
11.9.2006 1:31pm
Colin (mail):
I was there. He was the only person in the room wearing a Jesus t-shirt.

Well, you don't actually know what the Justices were wearing under their robes.
11.9.2006 2:08pm
Dave Hardy (mail) (www):
As a law clerk (state judge, not on SCOTUS) I always thought that oral argument was criminally wasteful of my time.

One spoke with an AZ supreme ct. justice who said that Sandra Day had talked about it -- she was on AZ Ct. of Apps before she got the Supremes appointment.

He said he bet she heard some good oral arguments up there, and she responded, no, she heard much better ones in the ct. of appeals. He was surprised.

She replied by the time it gets to the Supremes, the state atty generals figure they have to argue in person. They're politicians who know how to win elections, not cases. "In Division One (of ct. of appeals) we heard under-prepared attorneys. In the Supreme Court, we hear under-prepared politicians. I'll take the under-prepared attorney any day."

From listening to a few arguments, both in the state and in the US Supremes, I've got to say that the quality of argument was VERY low.

I once wrote up a satirical guide to oral argument, with things like:

Remember that an excessive focus on facts and record can detract from much more interesting legal abstractions.

Reading from a typed transcript will avoid slips of the tongue.

Speak in a monotone so as to avoid irritating the court.

If a Justice asks a question that you will address later, simply respond "I'll be getting to that later, Your Honor, and will get there more quickly if you stop interrupting my presentation."

If you briefed the matter being asked, respond that "If you'd bothered to read my brief, you'd know the answer to that, Mr. Chief Justice."

Always be ready with a snappy "Your Honor, I won't even dignify that question with an answer."
11.9.2006 2:18pm
anonVCfan:
Don't tell Clarence Thomas about this. As a textualist and as one who is less than enthusiastic about oral argument....
11.9.2006 4:44pm
Duffy Pratt (mail):
How does the bailiff get away with the Oyez, Oyez?
11.9.2006 10:00pm
arbitraryaardvark (mail) (www):
UNITED STATES v. GRACE, 461 U.S. 171 (1983)
http://laws.findlaw.com/us/461/171.html
11.9.2006 10:53pm
BruceM (mail) (www):
§ 6136. Suspension of prohibitions against use of Supreme Court grounds

To allow the observance of authorized ceremonies in the Supreme Court Building and grounds, the Marshal of the Supreme Court may suspend for those occasions any of the prohibitions contained in this subchapter as may be necessary for the occasion if--

(1) responsible officers have been appointed; and

(2) the Marshal determines that adequate arrangements have been made--

(A) to maintain suitable order and decorum in the proceedings; and

(B) to protect the Supreme Court Building and grounds and individuals and property in the Building and grounds.

... incidentally, 40 U.S.C. 6135 makes it illegal to STAND in the SCOTUS or on SCOTUS grounds.
11.9.2006 11:39pm
TomHuff (mail):
My favorite part is the firework prohibition. (I think I'm just amused that lighting off bottle rockets in the Supreme Court building was contemplated as a serious problem that needed to be addressed via statute.)
11.10.2006 1:26am
Sasha Volokh (mail) (www):
Focus on the "or grounds" part of "Supreme Court building or grounds." And note the Grace case that arbitraryaardvark linked above. The whole statute seems primarily aimed at protest activity in the whole front area of the Court, between the building and the sidewalk, where people might harangue, burn effigies, etc. The building is just a special case of the grounds.
11.10.2006 8:02am
Hermione:
Hi Sasha

I saw you at the oral arguments, but was too shy to say hi. Nice suit!
11.11.2006 10:56am