Oral Arguments in the Supreme Court

[A] successful oral argument is more like a compelling
conversation than a lecture . . . .

-- Charles Fried¹⁷⁵

On the morning of Wednesday, April 23, 2003, Paul Hoeber found himself in a familiar setting, to which he had first come some three decades earlier when he served as a law clerk to one of the Court’s greatest free-speech champions, Justice William J. Brennan, Jr. In those days, Hoeber sat, as did all the clerks, off to the far right of the Court chamber and listened attentively to scores of oral arguments while busily taking notes in longhand. And what he heard then, as he would hear now, was the customary statement by the Chief Justice and the customary reply by counsel for the petitioner:

Chief Justice William Rehnquist: We’ll hear argument now in Number 02-575, Nike, Inc. versus Marc Kasky. Mr. Tribe.

Laurence Tribe: Mr. Chief Justice, and may it please the Court.¹⁷⁶

The Harvard professor had thirty-five minutes in which to argue his case before the nine Justices. Court practice has it that lawyers must not read their arguments. Tribe, a seasoned Court lawyer, knew that. He also knew he had to present his case in a way that persuasively dodged the rhetorical arrows fired at him both by the Court and by opposing counsel. Oral argument in the Supreme Court is, if nothing else, a cerebral exercise where the rules of the mind govern. It epitomizes the Socratic method. Of course, as in Socrates’ day, the strongest argument does not always prevail. Biases do matter, misperceptions do occur, and precedents are sometimes ignored. Still, at a minimum, Laurence Tribe had to have the methodical mind of Aristotle and the polish of Daniel Webster (one of the Court’s most able advocates) to best secure any chance of victory.

Almost five years to the day after Marc Kasky filed suit against Nike, Hoeber watched Tribe begin his dialectical dance. Polished, professional, polite, and so in command of the facts and law, Tribe was every bit what his reputation had made him out to be. He was, by any measure, a formidable, though not unbeatable, opponent.

Essentially, Tribe declared, Nike had involved itself in “an intense debate on the pros and cons of globalization.”¹⁷⁷ When the company’s critics used the media to bill it as an exploitative Southeast Asian employer, Nike used the same media to “document what it thought were the connections between its presence and activities in countries like South Korea and Vietnam and the development of technological expertise in those countries, as well as the expansion of job opportunities there.”¹⁷⁸ Rather than engaging in commercial speech to hawk its wares, Nike was defending itself in “a lively political dialogue about the realities of the Third World and Nike’s role in it.”¹⁷⁹