For the inaugural William French Smith Lecture, Supreme Court Justice Samuel Alito joined attorney Carter Phillips, Professor Doug Kmiec, and Dean Ken Starr for conversation on Supreme Court advocacy and deliberation at Pepperdine Universityon Aug. 7.
Justice Alito gave a tutorial on the nature of written and oral advocacy before the Supreme Court and a candid appraisal of something rarely discussed by a sitting member of the Supreme Court--the Court's internal deliberations.
When asked about the Court's fewer cases this past term, Alito stated that it was not the Court's purpose to take fewer cases and he did not think the quality of petitions filed accounted for the decline. Like others, the justice speculated that there is simply less division among lower courts and less congressional activity giving rise to the need for interpretative effort. Alito opined that there is no "right" amount of cases, other than the Court fulfilling its duty under Rule 10 to take cases of great importance and to resolve genuine circuit splits. In response to questions from Professor Kmiec, Alito noted that some lawyers do manufacture "conflicts" that on a close reading of cases do not exist.
Carter Phillips of Sidley Austin in Washington, D.C. was the primary discussant with Alito, with both Kmiec and Dean Starr facilitating. Phillips revealed his mastery of Court strategy and regaled the audience with observations based on the substantial experience of arguing 54 cases before the High Court.
Alito posited that oral argument for him is a straightforward request for assistance from counsel with respect to weak aspects of a case. He revealed that justices do not by and large identify for each other these weaknesses in advance. Nor, he said, is oral argument a conversation among justices through the advocate. That would be a most inefficient method of conveying ideas to one's colleagues, said Alito. Phillips observed that at least with some justices, the advocate is used as a communications device. Phillips speculated, and Alito did not disagree, that in upwards of 80 percent of the cases, one can deduce the outcome from the questioning.
As for internal deliberations, Alito thought the process was reasonably aimed to accomplish its opinion writing tasks, though he conceded that on occasion, the views of the justices change after conference as the opinion is written out. While acknowledging that outlining can be helpful in a complex case, he did not see its need as a general matter.
In terms of collegiality, Alito saw the Court as healthy. Contrary to academic literature, he doubted that collegiality affected outcomes in any serious manner. The law determines outcomes, he said, not judicial friendships.
The discussion aired live on C-SPAN.
Pepperdine Celebrates William French Smith
Pepperdine Universityhosted A Celebration of the Life and Legacy of William French Smith on Friday, June 29, at the Ronald Reagan Presidential Library.
The Air Force One Pavilion was a magnificent
setting for the inaugural event of Pepperdine's
new William French Smith Memorial Lectures
on Law and the Judiciary.
Dean Ken Starr noted that the gala dinner event marked the establishment of the PepperdineWilliam French Smith Memorial Lectures on Law and the Judiciary. Says Starr, "The William French Smith Memorial Lectures will bring prominent speakers each year to focus on issues of law, the judiciary, and public policy so as to honor in perpetuity a singularly talented lawyer and public servant who, as President Reagan graciously put it, was 'always honest, always fair, always careful, and always motivated by a desire to do what was indisputably the right thing.'"
For more information, please contact the Pepperdine Universityat (310) 506-4621.