Quote:
Originally Posted by CPHoya
No. The lawyers have, in most cases, sparingly little to say that is of relevance and even less that is of (even potentially) persuasive value. By questioning them, the weaknesses in their positions can be more ably demonstrated and the Justices can force another Justice to confront a problem with their own position.
Before these arguments are heard, expansive briefing has taken place, and the Justices have in most cases already worked up a draft position paper or opinion, and they have already discussed the case for some time. As between the Justices, each of them know what the other 8 think (most of the time). The issues raised at oral argument have more to do with the direction from the Court, based upon its needs, than they have to do with the desires of the attorneys, which are relevant but not particularly important to the Justices.
That's part of what was so pedantic and ****ing stupid about Gorsuch yesterday. He literally ate up time in oral argument in multiple cases to implicitly argue in favor of his (stupid and incoherent Scalia v. 2 - Now Without the Wit™) judicial philosophy through loaded questions about an issue beneath the floor of intellect of everyone in the room - including him - and at one point actually encouraged one of the attorneys to continue reading a statute word for word. Everyone in the room had read that statute. The attorneys and Justices and clerks had read that statute probably LITERALLY hundreds of times. That served no purpose whatsoever, except sad and obvious political grandstanding and pandering.
It was an embarrassment.
Thanks for answering.
So when Thomas says 99% of the time I know how I'm going to rule before oral arguments, he's basically right, right? So it sounds like Gorsuch is kind of the extreme example of what Thomas is objecting to? And because Scalia was his ideological bro and also very very question-y there were basically no questions left to be asked by the time Thomas felt like it was actually time to ask questions?
I mean Thomas basically is saying that oral arguments are largely pointless, right? That everyone knows how they are going to rule based on the hundreds of pages of filings and the time has basically passed for any *actual* argument to have been made. So so much of the aggressive questioning that has become standard in the Court is pedantic showboating, which is just what you're saying Gorsuch is guilty of?
Anyway, so when Thomas actually does ask a question, lawyers basically **** themselves, right? Here is a case where Thomas appears to ask a series of extremely good questions:
Quote:
And when Deputy U.S. Solicitor General Michael Dreeben stood up to support Virginia’s defense of its law, Justices Sandra Day O’Connor, Ginsburg, Kennedy and Scalia all pounced, imploring him to shoehorn cross-burning into the Court’s various First Amendment precedents.
Through all these questions, both Dreeben and Hurd tried in vain to convince the justices that cross-burning carries with it “real threats of bodily harm with a specific intent to intimidate” that override any constitutionally protected expressions of bigotry that might be bound up in the action. But the other justices weren’t hearing them.
http://big.assets.huffingtonpost.com/VirginiaBlack.mp3