Gideon's Trumpet (21 page)

Eighth
, the practical implications require “adherence to
Betts v. Brady.”
A survey of the Florida prisons shows that approximately 5,093 of the 7,836 prisoners in custody were not represented by counsel when tried. “If
Betts
should be overruled by this Court in the instant case, as many as 5,093 hardened criminals may be eligible to be released in one mass exodus in Florida alone, not to mention those in other states.”

Jacob ended with a cautionary plea. “If this Court should decide to overrule
Betts,”
he said, “respondent respectfully
requests that it be accomplished in such way as to prevent the new rule from operating retrospectively.” In other words, the newly defined right to counsel should not apply to persons already in prison—presumably including Clarence Earl Gideon.

Even before he finished the brief, Jacob heard from the Supreme Court about the oral argument of the case. A letter received from Chief Deputy Clerk Cullinan on December 17th said
Gideon v. Cochran
would be “reached for argument on Monday, January 14, 1963.”

O
nly a small part of the process of decision in the Supreme Court is exposed to public view, and of that portion by far the most interesting and the most revealing is oral argument. Even the citizen wholly unfamiliar with the Court can gain some sense of the institution by sitting in the back of the chamber and listening to an argument. The exhaustive probing of a single set of facts shows, if it is done well, how our adversary system of justice can make truth emerge from conflict. It shows also how close the questions are that the Supreme Court must answer; characteristically, the listener finds himself persuaded by the last voice he has heard. The comments from the bench—sometimes funny, sometimes quite blunt—bring
out the personalities of the justices and remind us that the Court is a collection of strong-minded individuals, much less institutionalized than the typical agency of the Executive Branch.

Oral argument is more important in the Court’s decisional process than many lawyers realize. Too often they seem to regard it as a ceremonial affair, serving only to put a gloss on the contentions so carefully made in their briefs. But the Court does not feel that way. The justices who have spoken on the subject—and many have—say that oral argument performs a distinct function, in some ways more influential than that of the briefs. A good argument, Justice Harlan said, “may in many cases make the difference between winning and losing, no matter how good the briefs are.”

There are two reasons for this. One is that a brief cannot answer back when a justice reading it expresses doubt about some line of reasoning. Oral argument presents a great opportunity to answer the doubts and questions raised from the bench, to mollify one’s critics and arm one’s friends. This opportunity is the greater because of the Supreme Court tradition that oral argument is not an exhibition of high school oratory but an exchange between counsel and Court. The rules state that the Court “looks with disfavor on any oral argument that is read from a prepared text”; it is a time for
argument
, not declamation. Justice Frankfurter once said that the Court saw itself not as “a dozing audience for the reading of soliloquies, but as a questioning body, utilizing oral argument as a means for exposing the difficulties of a case with a view to meeting them.” And so there are likely to be a great many questions from the bench. Unfortunately, some lawyers—not excluding well-known names of the Wall Street firms—seem to resent
them, seeing questions as an intrusion on their well-ordered schemes of argument rather than as invitations to persuade. Justice Jackson, who was one of the great oral advocates of his day before he went on the bench, said in his wonderfully astringent style that he felt “there should be some comfort derived from any question from the bench. It is clear proof that the inquiring justice is not asleep. If the question is relevant, it denotes he is grappling with your contention, even though he has not grasped it. It gives you opportunity to inflate his ego by letting him think he has discovered an idea for himself.”

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 conversation—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.