(Just started reading? See part 1, part 2, part 3, part 4, and part 5.)

Reading the tea leaves

In some cases it can be reasonably obvious which way the Supreme Court justices lean. Oral argument and questioning in United States v. Stevens and District of Columbia v. Heller, for example, left most observers fairly certain which way the ultimate opinion would rule.

In other cases the future is much more murky. This was the case for both Tapia v. United States and Microsoft v. i4i Limited Partnership, at least in my understanding of the arguments.

In the case of Tapia, I’m only really sure of Justice Scalia’s vote. Justice Sotomayor seemed to lean pretty clearly one direction, but I have no idea if she was merely feeling out the waters on her argument, vocally pushing it to her colleagues, or just testing the arguments presented to her. And I couldn’t say how she might respond to the ultimate assertion made by Tapia (rather, the lawyer who argued for her) that “Congress has spoken” and that her desired outcome (supposing she indeed desires it) had been foreclosed.

In the case of Microsoft I have even less to go upon. I consider this the more technically challenging and complex argument, both for me to understand and for the justices to approach. Much of it went over my head. I suspect more justices will be drawn to the argument that Justice Cardozo described the standard of proof in patent cases in his long-ago opinion, simply based on discussion of it during the argument, and the appeal of referring to it under the concept of stare decisis (that is, to generally stand by prior decisions — although when one makes exceptions, as all justices do, is key to applying the doctrine). That doesn’t bode well for Microsoft. (Particularly because with Chief Justice Roberts’s recusal, Microsoft must count to count to five — but i4i only needs to count to four for their win to be upheld. In that case i4i would win the day without the case setting precedent to conclusively establish a standard of proof in patent litigation.) But I could easily be wrong.

Conclusion

I didn’t know exactly what to expect when I decided to make the trip to D.C. to go to an oral argument. Would it be worth the time to endure a mostly sleepless night, to go to arguments I might well not understand, at the expense of time and money it would take to be there? I was pretty sure the answer was yes (after buying the plane ticket to D.C. I was practically giddy with anticipation, and anyone who knows me knows how rarely I get that excited), but I didn’t know for sure.

Looking back, it was well worth the effort. Getting to see the highest court in the country in session, on matters of strong importance, even if I didn’t fully understand all that was discussed, was a priceless experience. And it was all the better by preparation spent reading briefs and considering the arguments presented. (I strongly recommend doing this if you ever consider visiting.) There’s also something to be said for the experience of just sitting in the line to get in, with people of all varieties all waiting to get in, each with as equal a right as yours to be there. (Well, almost equal: there’s that Supreme Court bar line, but they certainly put in the time for it. Although I have to admit I don’t immediately see a rational relationship between that investment of time, money, and labor and the ability to see arguments more easily.)

Anyway: it was definitely worth doing, and if I have reason to be in the area again in the future at an opportune time, I’ll probably try to do it again.

(Just started reading? See part 1, part 2, part 3, and part 4.)

After much line-standing, it was now time to hear actual argument.

For a number of reasons, I’m not going to go into much detail. First, I was pretty sleep-deprived. While I did a reasonable job of concentrating on the arguments, my mind sometimes just wasn’t capable of keeping up with the discussion out of sheer exhaustion. This also means my memory of the arguments is spotty and may have forgotten particular interesting exchanges. Second, while I read petitioner/respondent briefs for both cases, quickly skimmed the United States’s briefs in both, and read a couple amicus briefs of particular interest in Microsoft v. i4i, I’m far from expert in either area of law, so anything I say isn’t going to be the best-informed commentary. Third, if you want full detail, you can always read transcripts and listen to audio (simultaneously, even, thanks to The Oyez Project) from the oral arguments for Tapia v. United States and for Microsoft v. i4i. (Count your blessings: until Chief Justice Roberts joined the Court in 2005, transcripts and audio weren’t released until the end of the term, around the end of June. The Court then started releasing transcripts shortly after argument. And until this year, with very rare exceptions, they didn’t release oral argument audio until the end of the term, whereas now it’s released at the end of the week the argument occurs.)

For the most part, then, I’ll limit discussion to the impressions that stuck with me. Due to lack of time I haven’t gone over the argument transcripts, so this is all raw recollection diluted by a week’s delay in scribing.

General thoughts

The justices sit in high-backed chairs that appear very solemn, rigid, and somber. They are that — when nobody’s sitting in them and testing them. It turns out the chairs recline quite considerably, which diminishes their impressiveness a bit. 🙂 Justice Thomas and Justice Scalia sit next to each other in this iteration of the Court (the chief justice sits in the center, and the remaining justices alternate sides in order of seniority, so they sat on opposite sides before Justice Kagan joined the Court), and they had a tendency to lean back so far in the chairs that the sense of dignity the chairs conveyed was rather disrupted. 🙂 Not that it really makes any difference, of course: they are who they are. Still, it was kind of funny to see that the chairs’ veneer of gravitas wasn’t as deep as the angle they reclined.

Justice Thomas is frequently noted as remaining unusually silent on the bench. At the moment he hasn’t spoken in oral argument in just over five years — to counsel making argument, that is. From time to time he and Scalia would turn their chairs and confer with each other, as a lawyer for one side or the other continued his argument, presumably discussing the case being argued. His involvement’s certainly not passive even if that involvement includes none with counsel making an argument. This is about what I’d read various places before going to argument.

Justice Ginsburg is definitely the most frail-looking justice. Even taking into account her physical position, she seemed to look downward at counsel more than appeared to be necessary, and she seemed to hunch over the presumed papers in front of her when asking questions. The other justices had a physical presence of sorts which Justice Ginsburg seemed to lack. (Again, not that it makes any real difference, she being who she is.)

Some people question the importance of oral argument, suggesting that the written briefs settle the issue, the justices have already made up their minds, and so on. Among the usual arguments against this is that the justices use argument as a sounding board to figure out what their fellow justices think and to in a sense passively-aggressively make their cases to each other. If that happened here, I didn’t have the Court-reading experience to see it, or perhaps these cases were simply not clear-cut enough for it to happen in any obvious way.

Tapia v. United States

Justice Sotomayor asked a number of questions, at various points in the argument, which essentially took the point of view of a district court judge tasked with sentencing. Her questions seemed to suggest that she thought judges should have sentencing discretion to consider rehabilitation programs for the defendant’s own good. She was a trial judge at one time, as I recall, and I found it interesting that, for the first time I can recall reading, (dare I say it?) empathy due to her past experience as a trial judge seemed to strongly affect her approach to a case. I also found it interesting because from what I can remember, historically her position has been generally pro-defendant, and (facially) this sympathy for the judge would run counter to that.

Justice Scalia, well known as an advocate of textualism, repeatedly questioned about how a judge could “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation” while lengthening a sentence to rehabilitate. As I recall he drew a laugh once for suggesting a judge could “recognize”…and then say he was going to give a longer sentence anyway. He seemed to find the statutory text pretty clear.

I have no strong memories of the questions and answers of the other justices (save Justice Thomas, who asked no questions), although I’m sure on reading the oral argument transcript more memories would spring to mind.

Microsoft v. i4i

The very first thing I noticed about this case was that, in the very brief recess between this case and Tapia, Chief Justice Roberts had disappeared. This was expected: he’d recused himself because, as I recall, his family owns Microsoft stock. At the same time his disappearance was so abrupt that I didn’t even see him leave, despite making half an effort to watch and see it happen (because I was wondering if the other justices would rearrange their seating around Justice Scalia, who acted as chief justice for the argument).

I found this argument more technical and peppered with citations than the previous one, which made it harder to follow. The justices spent some time talking about RCA v. Radio Engineering Laboratories, Inc., the opinion in which Justice Cardozo made perhaps the strongest statements supporting the clear and convincing standard of proof. It was more time than I’d have expected, given the other opinions that could have been discussed as well.

At one point one counsel cited an opinion made by then-Judge Alito when he had been judge in a lower (circuit, I think?) court. I’m not certain, but I suspect it was the same side that had also cited an opinion of his in their brief. I had to read briefs containing bald assertions that previous cases cut in exactly opposite directions, and skeptic that I was at the time, I found this good for a laugh when reading that brief. Justice Alito seemed to think similarly, as he immediately made a self-deprecating comment about how he wasn’t nearly as smart at the time, or something to that effect. However, I don’t remember thinking he was seriously hinting which way he was leaning in doing so.

When oral argument in Microsoft finished (Microsoft’s counsel still had rebuttal time, as I noticed because the white light on the podium had turned on [indicating five minutes remaining] but the red light [indicating no time] had not), my mind felt overwhelmed with what I’d seen and heard. I knew I’d followed less than half of what had been said, yet at the same time I knew I’d basically achieved my goal: to know enough to be dangerous while hearing the arguments.

Next time, reading the Court’s tea leaves.

(Just started reading? See part 1.)

If I was to combine a trip with a visit to family for Easter, I was limited to arguments in April. One sitting stood out as particularly interesting: the April 18 sitting in which Tapia v. United States and Microsoft v. i4i Limited Partnership would be argued. Tapia concerned the permissibility of considering in-prison rehabilitative programs during sentencing — not an issue of particular interest to me. But Microsoft concerned patents, which are certainly relevant to anyone in the software industry. It made a good fit: my weekend was chosen.

Supreme Court oral arguments are open to anyone who arrives “early enough”, which depends on the interest level of the cases being argued. Tapia, as a sentencing case not touching a contentious issue like the death penalty, was low-interest. But “the showcase intellectual property case of the year” might well draw a moderate crowd. And I knew from a Mozillian who’d attended Bilski v. Kappos, the last major patent case before the Court, that arriving at 22:00 the day before a patent case could be good for a spot near the end of public seating. (Huge caveat: the other arguments that day concerned juvenile life imprisonment without possibility of parole.)

Based on one suggestion of 05:00 for “mid-major” cases (which I suspected Microsoft to be) and the effort I was making just to get to D.C., I decided to err heavily on the side of caution by waking up at 1:00. I would take a shower, get dressed in a suit purchased Friday (Visa flagged it as a fraudulent transaction, and I think they were on to something), and walk forty minutes to the Supreme Court. Better to get less sleep but be guaranteed to see the argument than to gamble and lose after making such an effort to even have a chance to see it.

Next time: sitting in line for the arguments.

Among my various eccentricities, I subscribe to the Green Bag, an entertaining journal of law (I read about equally for entertainment and for interesting knowledge) which occasionally produces extra gifts, such as Supreme Court justice bobbleheads, for its subscribers. If the Green Bag sends you a certificate, you might (they qualify to the hilt any possibility you might get anything other than the subscription) be able to go to George Mason University just outside Washington, D.C. and exchange it for some number of bobbleheads. (Or have a proxy do it, but that has its own problems.)

A few months ago the Green Bag sent me a certificate potentially good for bobbleheads. I live on the west coast, so how was I to redeem it? I’m not crazy enough to fly across the country just for bobbleheads (even Supreme Court bobbleheads!). But if I planned it right, I could combine a trip with one to visit family for Easter, economizing the number of long-distance flights I’d take doing both trips. It was enough justification for me to visit D.C. from April 15 to April 19.

I’m not much of a tourist, so I didn’t visit museums or do much traditional exploration in D.C. (I also planned to work most of Friday and Monday while visiting, a plan mostly-successfully executed from a couple Starbucks.) I caught up with a couple friends (Mozillians may remember Joey Minta of calendar, Thunderbird, and kill-rdf fame, now working at a D.C. law firm) and attempted to catch a game of ultimate on the National Mall that got foreclosed by rain. I also tried to sample area cuisine: Five Guys (NB: they’re in Sunnyvale now!), Founding Farmers, Potbellys (not especially local to D.C., but I’d never seen them before), and Momiji Restaurant (the Asian pear martini was quite tasty).

But most specially, I went to a sitting of the Supreme Court and watched two oral arguments. More on that over the next several days, starting with which cases to attend and when to arrive.