Oyez

c By William Barnhart

The Chicago Literary Club, May 1, 2006

In the hurly burly of Washington, D.C., the Supreme Court is a reverential oasis. That’s by design, according to the Supreme Court Historical Society. “Gleaming bone white and austere among its distinguished neighbors on Capitol Hill, its stately façade evoking the long-enduring glory of ancient Rome, the Supreme Court Building imposes a mood of decorum. The aura of formality is no accident.”[1] – so says the Historical Society. Ever since Chief Justice John Marshall declared in 1803 the power of the federal courts – not Congress or the president -- to determine what is legal under the Constitution, the Supreme Court has been the last stop for the vital issues of American society. Architect Cass Gilbert, who designed the Court’s marble palace in 1929, intended to convey the full import of Marshall’s historic decision in Marbury v. Madison.

Tourists with small attention spans and lawyers with large egos find themselves in awe the moment they are admitted to the small courtroom. On days the Court is in session, menacing stares of the security guards guarantee that no one misses the point. This is serious business. Absolute silence is enforced in the chamber for five minutes before the heavy velvet curtains part and the justices enter to hear the first case of the morning. The marshal of the Court declares solemnly, “The honorable, the chief justice and 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.”

Then, after the admonishment and all the honorables, the fun begins.

That is, what happens during oral arguments before the Supreme Court often evokes laughter. I’m not here to relay Supreme Court jokes. We heard plenty of those during the recent nomination and confirmation process for the two newest justices. Well, just a couple. As a former devoted reader of Mad magazine, I still look forward to the day when the high court takes up the case of Spy v. Spy. My favorite Supreme Court postcard shows two fishermen in the Great Northwest – one casting his line from a small rubber raft, the other walking a stream. Justice Souter sent this card to Justice Blackmun. The caption was “Roe versus Wade.”

No, I’m talking about laughter during oral arguments in the Court chamber – humor that seems to be breaking out more frequently these days. The mirth often contrasts sharply with the issues before the Court. In March, for example, justices were considering the first amendment rights of especially incorrigible inmates housed in maximum security in the Pennsylvania prison system.[2] At issue was the sort of reading materials that could be denied to them. The state said paperback books from the prison library were okay. Newspapers, containing information about current events, were not.

Here’s a bit of the dialogue between Louis Rovelli of the Pennsylvania Attorney General’s office and the justices:

Rovelli: “There’s certainly a security component to it. Paperback books, small, compact, much more difficult to use as weapons, and the experience of the prison staff that operate this high security unit is that newspapers and magazines are – have been – a frequent source of mischief.”

Justice Scalia: “Can we explain that? How does one use a newspaper as a weapon? I mean, you know, maybe disciplining the dog or something.”

This remark sparked some laughter in the Court. But then Rovelli explained that prisoners apply toothpaste to the newspaper to create a sort of papier-mache, which hardens into an effective club when the newspaper is rolled up tightly. This was the answer Scalia sought to illicit.

Later, the attorney for the prisoner attempted to rebut Pennsylvania’s contention that newspapers should be banished – but not other materials that can be used for bad purposes.

Justice Scalia could not let this opportunity pass: “Do you know what kind of a fire you can make with the Sunday New York Times?” he asked. The laughter that ensued in the courtroom suggests the audience suspected Scalia already knew the answer to that question, as well.

You’ve probably figured out one of the reasons for the more robust laugh track at the Supreme Court. Yes, Justice Antonin Scalia is a bit of a smart alec. Jay Wexler, a professor at Boston University School of Law, has documented Scalia’s contribution to Supreme Court humor by counting instances of laughter.[3] Can you guess who takes second place? I’ll bet you know who scored no points at all.

You can conduct this research yourself, on the Supreme Court’s web site. Just call up the recent oral argument transcripts and search under the word “laughter.” Every time the transcriber hears laughter, it is noted in parentheses. Starting with the Court’s 2004-2005 term, the transcript states the name of the justice who asks a question. Previously, transcripts merely said “Question.” So, now you can easily determine which justice prompted the merriment.

Looking at the seventy-five oral arguments recorded in the 2004-2005 term, Wexler found that “Justice Scalia won the competition by a landslide, instigating seventy-seven laughing episodes.” Wexler adjusted his statistics to reflect the fact that not all justices attend all arguments. In particular, former Chief Judge William Rehnquist – who was known for his good humor -- missed several sessions in the final years of his life. The second biggest laugh generator, on this adjusted basis, was Steven Breyer. Rehnquist was fourth, just behind William Kennedy; David Souter was next; John Paul Stevens, Sandra Day O’Connor and Ruth Bader Ginsburg were also-rans. Justice Clarence Thomas, who rarely speaks at all during oral arguments, went unrecorded.

Today, there is a serious debate among well meaning and informed individuals about whether the sittings of the Supreme Court to hear arguments should be televised. Senator Arlen Specter, chairman of the Senate Judiciary Committee, is sponsoring a bill permitting cameras in the most important courtroom in the land unless a majority of the justices, on a case by case basis, vote to bar camera access. The justices object that under the Constitution the legislative branch may not set rules for the judiciary. That’s a good rebuttal. But I don’t think that those who oppose the televising Supreme Court oral arguments should be allowed to get away with citing boredom as point in their favor.

On the other hand, I don’t want to overstate my case, so to speak. The work of the Supreme Court is just about as far from comedy as you can get. The Court’s solemn rituals may seem quaint and pompous in a society that rejected the trappings of royalty two hundred thirty years ago. But they have worked. Of course, serious justice is better for all of us that slapstick justice. Moreover, the Court’s demeanor has served as a vital counterpoint to the more freewheeling Congress and the occasionally amusing comportment of the executive branch.

In addition, you might say that people who turn to the Supreme Court for amusement should seek professional help – and not from lawyers. As Professor Wexler notes, “The Court Reporter does not distinguish between types of laughter, either in terms of duration or intensity; a quip that has resulted from a series of small chuckles, in other words, may count just as heavily in this methodology as a joke that brought down the house.”

My own research of cases in the current term found no examples that seemed remotely like bringing down the house. Unfortunately, many laugh lines in oral arguments have a you-had-to-be-there quality about them that makes retelling a difficult exercise. Here’s one example that falls flat on rehearing:

Last year, the Court considered whether calls you make to someone over the Internet should be regulated as telecommunications or as information transfer.[4] That’s a hotly contested issue between phone companies and Internet service providers. Justice Breyer tried to put the complicated matter into context:

“Rather like when I phone Europe, and they take the message and turn it into electronic packets, and they send it out all over the world and on computers and so forth, and it comes back to me eventually, sound[ing] a lot like my-brother-in-law.”

Some laugh lines are merely inside jokes among constitutional lawyers that would not work at all in a David Letterman monologue. Here’s an example, with Justice Scalia questioning a lawyer:[5]

Scalia: “It depends on whether the federal question has to be pleaded or not.”

Attorney: “That’s correct. And the justification of the well pleaded complaint rule that the Court has authored is that it provides a quick rule of thumb for determining at the outset of the litigation which cases are most likely to be the ones where the Federal law issues are at the forefront.”

Scalia: “It’s quick and dirty. We haven’t tried to slice the baloney too thin in this area, have we?”

At this point, according the official transcript, some people in the courtroom laughed. But more people probably fell asleep.

Many of the noted instances of laughter reflect nervous laughter, as the Court deals with particularly delicate subjects. There were nine laugh lines noted in the one hour oral argument of Lawrence and Garner v. Texas [6], a pivotal case in which the Court reversed itself to overturn state laws against homosexual sodomy. That’s quite a few laughs for any case. Justice Breyer wasn’t trying to get a laugh but prompted one anyway when he told the attorney for the State of Texas, “I would like to hear your straight answer to those points.”

Often, laughter is spawned by the tension of the proceeding itself. Generally, each side gets a strictly enforced thirty minutes of oral argument, as a light at the rostrum signals the end of the period. But much of the time can be eroded by interruptions from the bench in the form of questions and comments. One lawyer described his first standing time at the lectern, just a few feet in front of the justices, as similar to teetering at the top of a giant ski slope.[7]

In 1995, the Court considered a case concerning a high school district that required random drug testing of student athletes, conducted in the school by school officials.[8] The case was brought by the parents of a student who argued that the test was an invasion of privacy. Thomas Christ, attorney for the student, became flustered as skeptical justices fired questions at him.

Rehnquist: “How much privacy is there in a boy’s locker room with a bunch or urinals lined up against the wall and guys marching naked from the showers to the lockers?”

Breyer: “People urinate in men’s rooms all over the country.”

Christ: “We all urinate, that has to be conceded. In fact, I might do so here.”

Incidentally, I should note here that we know who was speaking in the sodomy and drug testing cases, which were presented before the 2004 term, thanks to an invaluable web site for Supreme Court junkies. It’s the Oyez Project at Northwestern University, found a www.oyez.org. Here, you can listen to dozens of oral arguments and, in many cases follow a scroll of the transcript that identifies who is speaking. Indeed, if you listen carefully to many of the recordings, you’ll hear amusing lines and a responding courtroom buzz that didn’t merit a formal mention as “laughter” in the official transcript.

What’s so funny about oral arguments in the Supreme Court, besides Justice Scalia, of course? I would argue in my 30 minutes – and you don’t get to interrupt me -- that humor is not merely incidental to the pressure of Court proceedings or to the personalities of the justices. Rather, humor and law have a great deal in common.

In his small but influential book, An Introduction to Legal Reasoning[9], former Attorney General and University of Chicago Law School Dean Edward Levi wrote, “The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case.” Levi calls it reasoning by analogy. More formally, he said, “A proposition descriptive of the first case is made into a rule of law and then applied to the next similar situation.” In other words, each successive set of facts in a case is applied by different judges at different times to the law. The law, which arose from a previous set of facts, evolves as a new example is applied.

Quite often, the examples being compared in legal reasoning seem odd. Supreme Court oral argument in cases concerning school desegregation in the 1950s included references to riverboat pilots on the Mississippi and to drinking whisky.[10] Why? Because these seemingly disparate matters involved past court decisions that related, by example, to the Court’s immediate problem in ending segregation. What is a good joke but reasoning by example? People laugh at jokes because they see the analogy to themselves or to situations they know.

Levi points out that the history of the Commerce Clause of the U.S. Constitution is rich in evidence of the law’s evolution through sometimes strained analogies. Over the decades, stories about prostitution, lotteries, oleomargarine, worker strikes, automobiles, child labor, guns and marijuana have been compared in efforts to expand or contract federal power under the Commerce Clause. The White Slave Traffic Act of 1905, also known as the Mann Act, was not directed at white people alone, had nothing to do with slaves and went well beyond the definition of trafficking. But in considering the constitutionality of the law, which intended to address so-called red light districts in many cities, lawyers evoked each of those analogies and others that were even less relevant. Each example had been employed by courts previously in affirming the Commerce Clause as a moral weapon. The Mann Act, in turn, was used to extend the Commerce Clause to issues far beyond its scope, including Court rulings about wage and hour laws. So, the law grows as judges consider fresh analogies.

Sometimes the results are just funny. Often during oral argument justices frequently pose amusing hypothetical situations -- or what-if scenarios -- as a way of focusing or restricting the analogies that the lawyers standing before them are trying to sell as relevant to their case. But on one occasion in 1995, the black-robed justices lost control of themselves in an interlude that has been compared to a skit on “Saturday Night Live.”

The case was literally funny on its face: Florida Bar Association v. Went For It Inc. [11]. Went For It was a lawyer referral service that, according to its critics, collected the names of accident victims and distributed them to ambulance chasing lawyers -- thus the name. The firm was cited for violating a state bar association rule that prohibited lawyers from soliciting victims or their relatives for thirty days after an accident or disaster. Went For It’s lawyer drew his analogies by connecting the concerns of his client to the First Amendment and the importance of citizens learning about their rights to counsel under the Sixth Amendment. The bar association’s attorney spoke about upholding the reputation of lawyers – invoking the examples of the solemn dress of the justices and the decorum of the Supreme Court building itself.

Rehnquist asked Bruce Rogow, who was Went For It’s lawyer, whether he would agree that many people thought lawyers were greedy. “We’ve fought an image issue for a long time, Chief Justice,” he replied. Here’s what followed:

Stevens: “We probably should pass a statute saying you can’t say unnice things about lawyers.”

Ginsburg: “And not read Dickens or Shakespeare.”

Souter: “Not admit greedy people to the practice of law.”

Scalia: “I’m glad I never passed through the stage of being a lawyer before I got where I am.”

Breyer: “It might have helped you, actually.”

Sometimes, an attempt to juxtapose distinct sets of facts – real or imagined -- to create an effective analogy fails to persuade the justices. The attempt to create a legal parallel can be a case of dark humor.

Federal drug agents seized marijuana from the home of a California woman who was smoking pot as prescribed by her doctor under California’s Compassionate Use Act. [12] In arguing before the Court last year, the lawyer for the patient drew an analogy to a 1995 Supreme Court ruling regarding guns in schools. The Court had ruled that the so-called Gun-Free Zones Act passed by Congress is 1990 to banish guns in and around school property was an unconstitutional application of the Commerce Clause. It was a major victory for state’s rights as well as the gun lobby.[13]

Looked at in a political context, you would expect liberals who favored the California marijuana law to oppose the Court’s decision in the gun case. But the California medical pot smokers declared themselves on the side of the gun conservatives. Okay, they told the Court. It’s state’s rights. The marijuana we grow and smoke inside our own state has nothing to do with interstate commerce. And what we’re doing is perfectly legal under California law.

But this time the conservative justices upheld the broad interpretation of the Commerce Clause that dated back to the New Deal. They voided the California Compassionate Use Act. The relationship between these gun and marijuana cases is complex, but essentially the Court’s conservatives liked the Commerce Clause when it was used against marijuana smokers but disliked it when it was used against people toting guns around schools. It’s worth noting that the author of the medical marijuana decision was the Court’s senior liberal, Justice Stevens, who is a leading advocate of the Commerce Clause as a bulwark of the American commonweal. Irony and paradox, not to say hypocrisy, are the essence of humor.

But enough about mining humor out of dry legal reasoning. Another factor in the expansion of laughter in the Supreme Court is what appears to be a widening gap between two kinds of lawyers – those who are experienced in presenting oral arguments and those who are not. The Court is hearing fewer cases and is often better prepared for oral arguments than in the past. Legal scholars are challenging the conventional wisdom that oral arguments are merely pro-forma. One law review article demonstrated that you can predict the outcome of cases by measuring the number and tone – hostile or friendly – of questions that the justices ask lawyers.[14] Before he joined the Court, Chief Justice John Roberts Jr. conducted a study of twenty-eight oral arguments [15]. In twenty-four cases, the lawyer who received the most questions lost. That’s why lawyers for commercial clients attend Court sittings and rush out to activate their cell phones when the argument has ended.

It’s also why a small group of Supreme Court practitioners are getting big bucks to present cases. A survey by The American Lawyer magazine[16] found that justices are hearing fewer cases and relying more on a small group of Supreme Court advocates, a throwback to the days of Henry Clay and Daniel Webster. Prominent on the A-list of Supreme Court practitioners are individuals who served as Solicitor General, former clerks to Supreme Court justices and a few entrepreneurial lawyers who set about to be Supreme Court specialists. Women are scarce in this group. So it’s not surprising that oral arguments may on occasion – such as the high school drug testing case -- take on a tone not unlike the men’s locker room in a country club. One former member of this select group is now the Chief Justice of the United States, John Roberts.

In elite professions, such as the law, familiarity does not breed contempt. It breeds bonhomie and humor. A legendary example was William Kunstler, who, despite his reputation as a shock jock in the legal profession, was a welcome visitor to the Supreme Court. Thanks mostly to Kunstler, there were nineteen eruptions of laughter during the oral argument in a 1989 case concerning flag burning.[17]

In one interchange with the justices, Kunstler noted that the Texas law he was challenging referred to “a national flag.” “There are many national flags,” he noted. “I counted seventeen national flags. Each department here in Washington has a flag.” At that point, a justice asked Kunstler, “Does the Supreme Court have a flag?” “I don’t know, but the Republican Party has one,” replied Kunstler. All but two of the justices at the time had been appointed by Republican presidents. I should add that Kunstler had been before the Court just a month earlier to defend a rock band promoter whose outdoor show had annoyed residents around New York City’s Central Park.

Seth Waxman, who was solicitor general under President Clinton, makes a comfortable living as a Supreme Court hired gun. He seems to enjoy it. In a 2004 case concerning environmental law, Waxman had this exchange with Justice Breyer[18]:

Breyer: “And now, you’ve sort of said, no, no, you’re way off base, and I want to know why I’m off base.”

Waxman: Justice Breyer, you’re not way off base. You’re slightly off base, but not way off.”

A few minutes later:

Waxman: “With respect, Justice Breyer.”

Breyer: “Yes.”

Waxman: “Here, you are completely off base.”

Whether Supreme Court oral arguments will ever be televised, the Internet has pierced the Court’s veil of intentional boredom. The major perpetrator is Dahlia Lithwick, a writer for slate.com, an Internet news site. Lithwick reports on Supreme Court oral arguments as if they were comedy club acts. Her account of the appearance of Anna Nicole Smith last February in a trust and probate case was titled “Rack and Ruin.”[19]

“The Court somehow scatters its own unique brand of boringness and uptightness over every drama it touches. Whereas Anna Nicole Smith exists exclusively for psychodrama. If she isn’t wearing something sparkly or saying something filthy, she might not exist at all. Which is why this morning’s collision between the two worlds is so compelling.”

Unfortunately, with Miss Smith in the audience, the Court was on its best behavior. There are only three laugh lines in the transcript. None of them was funny, even in context. Lithwick gets around this impediment by exercising her journalistic imagination: “I would love to tell you that she did something, anything, to distinguish herself from the thousands of appellants who have brought their cases into these marble halls. But the Court has worked its magical spell of blandness.”

In another case, Lithwick imagined the justices as different breeds of dog or cat as they listened to a case in which a drug-sniffing dog detected drugs in a defendant’s car without first getting a search warrant.[20] The case arose from Illinois. Illinois Attorney General Lisa Madigan was a collie. Souter was a Persian; Scalia was a Chesapeake Bay retriever; Stevens was the Cat in the Hat. Kennedy was a sheepdog, and so on.

Beyond Lithwick’s creativity, this 2004 case, titled Illinois v. Cabelles, illustrated another reason for more humor during oral arguments. We don’t know yet how Chief Justice Roberts is running the shop. But under Rehnquist, his demand for efficiency left little time for socializing during the Court’s secret conferences. As a result, Court observers noticed more interchanges among the justices during oral arguments. In the dog-sniffing case, Lisa Madigan noted that the defendant was stopped on Interstate 80 for driving 71 miles per hour in a 65-mph zone.

Stevens: “I don’t imagine you arrest everybody on I-80 that goes 70 miles an hour. I’ve done it many times myself.”

Scalia: “Inadvertently.”

Stevens: “Inadvertently.”[21]

Lithwick wrote that Scalia was “trying to save Stevens’s confession from turning into a spontaneous courtroom dog sniff.”

No lawyer will ever forget his first time presenting a case to the Supreme Court. But for the newcomers, the memory rarely includes humor. First-timers remember when they threw up in the hours before appearing. They remember their panic attacks. One lawyer was playing with his one-year-old daughter a few days before his appearance. The little girl pushed a toy with a suction cup onto his face. He recalled, “When I finally dislodged the thing, it had left a large, well defined red circle in the middle of my forehead that looked exactly like a target.” Fortunately for him, the mark disappeared before he entered the hallowed Court room.[22]

This lawyer, Thomas Sullivan, also suffered one of the legendary missteps in recent Supreme Court protocol. The first recorded instance of this disaster is attributed to Rex Lee, who was solicitor general under President Reagan. Lee encountered Chief Justice Warren Burger at a social event. “And he told me, very seriously, ‘Some of your lawyers have been appearing in button-down shirts. That’s not appropriate’…I told him I’d get someone on it right away. But I didn’t know anyone other than me who had ever appeared in a button-down shirt.”[23]

Sullivan came to this realization while he was praying in the anteroom for lawyers who are about to appear before the Court. He overheard another lawyer, engaged in small talk with colleagues, utter the Burger rule on button-down collars, just like the one on his brand new white shirt. By the way, the rule continued under Chief Justice Rehnquist, whose sartorial exploits are legendary.

The most ill-starred experience by a lawyer before the Supreme Court in recent history concerned Robert Moxley, an attorney from Wyoming. Moxley represented a girl who claimed to have been injured by a vaccine. According to the account of the 1995 oral argument by veteran Supreme Court reporter Tony Mauro, Moxley “was so rattled by the barrage of questions from the bench – some of which were ambiguous – that he began contradicting himself in his answers. As he tried to backpedal, a furious Rehnquist asked him, ‘How can you stand there at the rostrum and give those totally inconsistent answers.’”

Moxley: “I’m sorry your honor.”

Rehnquist: “Well, you should be.”

Moxley: “I didn’t mean to confuse the Court.”

Rehnquist: “Well, you … haven’t confused us so much as just made us gravely wonder … how well prepared you are for this argument.”

Rehnquist then declared that Moxley’s time had expired. He lost the case nine-to-nothing and was fired by his client. He later told journalist Mauro, “I felt like I had been dropped out of a tall cow’s ass. The taller the cow, the bigger the pile.”[24]

Speaking of time expiring, one of Chief Justice Roberts’ first laugh lines came at the end of an oral argument last December, as Roberts was establishing himself as the new chief justice of the United States. Justice Breyer was questioning a lawyer in a case concerning employee drug testing by the Federal Aviation Administration.[25]

Breyer: “Why, given the presence of Section 705 of the act…”

Lawyer: “Well, we….”

Breyer: “…one’s … forget it.”

Lawyer: “Uh, oh.”

Breyer: “Your time’s up.”

Roberts: “I get to say that. Your time is up.”

And so, I say my time is up.

FOOTNOTES

1. “Home of the Court,” The Supreme Court Historical Society: History of the Court, www.supremecourthistory.org.

2. Beard v. Banks, argued March 27, 2006, www.supremecourtus.gov.

3. Jay D. Wexler, “Laugh Track,” The Green Bag, Autumn 2005, vol. 9, no. 1, pp 59-61.

4. National Cable & Telecommunications Assn. v. Brand X Internet Services, argued March 29, 2005, www.supremecourtus.gov.

5. Grable & Sons Metal Products v. Darue Engineering & Manufacturing, argued April 18, 2005, www.supremecourtus.gov.

6. Lawrence and Garner v. Texas, argued March 26, 2003, www.supremecourtus.gov.

7. David J. Bruck, “First Arguments at the Supreme Court of the United States,” The Journal of Appellate Practice and Process, vol. 5, issue 1, spring 2003.

8. Vernonia School District v. Action, argued March 28, 1995, from recorded oral argument on www.oyez.com.

9. Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949),1, 2.

10. Mark V. Tushnet, ed., Thurgood Marshal: His Speeches, Writings, Arguments, Opinions, and Reminiscences (Chicago: Lawrence Hill Books, 2001) 27, 50.

11. Florida Bar Association v. Went For It Inc., argued January 11, 1995, from recorded oral argument on www.oyez.com.

12. Raich v. Gonzales, (also cited as Ashcroft v. Raich) argued Nov. 29, 2004, www.supremecourtus.gov.

13. U.S. v. Lopez, decided April 26, 1995.

14. Sarah Levien Shullman, “The Illusion of Devil’s Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument,” The Journal of Appellate Practice and Process, vol. 6, no. 2, fall 2004.

15. John G. Roberts, Jr., “Oral Advocacy and the Re-Emergence of the Supreme Court Bar,” The Journal of Supreme Court History, vol. 30, issue 1, 2005.

16. Tony Mauro, “Appealing Practice,” The American Lawyer, vol. 22, no. 10, October 2000.

17. Texas v. Johnson, argued March 21, 1989, from recorded oral argument on www.oyez.com.

18. Engine Manufacturers Association v. South Coast Air Quality, argued Jan. 14, 2004, www.supremecourtus.gov.

19. Dahlia Lithwick, “Rack and Ruin: The Supreme Court considers Anna Nicole’s surprisingly real claims” www.slate.com, Feb, 28, 2006.

20. Dahlia Lithwick, “The Truth About Cats and Dogs,”www.slate.com, Nov. 10, 2004.

21. Illinois v. Caballes, argued Nov. 10, 2004, www.supremecourtus.gov.

22. J. Thomas Sullivan, “First Arguments at the Supreme Court of the United States: Twice Grilled,” The Journal of Appellate Practice and Process, vol. 5, issue 1, spring, 2003.

23. John A. Jenkins, “The Solicitor General’s Winning Ways,” American Bar Association Journal, vol. 60, p. 736, quoted in Theodore B. Olson, “The Advocate as Friend: The Solicitor General’s Stewardship Through the Example of Rex E. Lee,” transcript, Rex E. Lee Conference on the Office of the Solicitor General of the United States, Brigham Young University Law Review, vol. 2003, no. 1, 10.

24. Tony Mauro, “Invoking the Wrath of Rehnquist,” Legal Times, March 1995, quoted in Barbara A. Perry, The Priestly Tribe: The Supreme Court’s Image in the American Mind, (Westport, Conn.: Praeger Publishers, 1999), 109. See also, Tony Mauro, “Appealing Practice,” The American Lawyer, Oct. 2, 2000.

25. Whitman v. Department of Transportation, argued Dec. 5, 2005, www.supremecourtus.gov.