an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today I attended oral argument at the Supreme Court of the United Kingdom. This was a rather different experience from oral argument at our own Supreme Court. Some impressions:
Arriving at the court, security was quite lax. My bag went through an x-ray machine and I went through an airport-style metal detector. But I was allowed to take everything I had with me—including my camera and cell phone—into the courtroom.
Within the courtroom itself there were no guards. One guard was stationed outside but he wasn’t armed and he seemed mostly responsible for opening and closing the courtroom door quietly.
The court today was sitting in two panels, each hearing one case. I attended the argument in a case involving the government’s refusal to allow an Iranian dissident into the U.K. to address Parliament. That argument was in courtroom 2, a very modest space. The room was about the size of a law firm conference room. Furnishings were plain. There was very little that indicated the room even was a courtroom.
The argument itself was surprisingly casual.
The justices sat behind a table about 2 feet from the litigants. The lawyers were seated at the exact same kind of tables. The lawyers and the justices also had the same kinds of chairs except those of the justices had a slightly taller back. This meant that everyone was at the same level when seated. The lawyer arguing stood behind a plain podium, looking slightly down on the justices. The law clerks (there were three in attendance) sat behind the justices at a bench (I initially thought they were the justices). None of the justices wore a robe. The courtroom was at street level and I could see traffic and pedestrians right outside the window.
Besides a journalist, I was the only person in the public seating area (two other people stopped by briefly during the argument). In fact during my entire visit I encountered only five other individuals who were not somehow connected to the court.
The argument was recorded and streamed live to monitors other parts of the courthouse including right outside the cafeteria. (The argument is also posted the internet).
Everyone had laptops. Throughout the argument, the lawyers referred to the record by “Memory stick, page __.” Whenever they did so, all of the justices would obediently scroll down on their laptops to the appropriate electronic page. This occurred time and time again, such that it all felt more like a classroom lecture than an oral argument. (The justices also took copious notes: I didn’t see a court reporter as such.)
At times I wondered whether the justices had read the materials in advance of argument given their careful focus on the pages in the recorded to which the lawyers directed them.
There were few questions from the justices. The lawyers did 95% of the talking. The justices never interrupted each other and never interrupted the lawyer making the argument.
While I assume there must have been time limits, there didn’t seem to be any sense of urgency. A lawyer I watched spent 45 minutes on point one of his argument and then said something like “Now we get to the main issue…..”
It was impossible to tell what any of the justices thought of the case on the merits. The whole thing was basically a conversation in which various ideas were tossed around, like at a graduate seminar or a dinner party even. The justices didn’t contradict anything the lawyers said; there was no telecasting of views; no chastising of counsel; no sarcasm; no hostile questioning.
Much of the argument focused on the requirements of the European Convention on Human Rights. The justices gave no impression they were experts on the Convention. They asked very basic questions about it and about the case law of the European Court of Human Rights. (I felt at times I knew more about the Convention than did the justices themselves.) On several occasions, a justice read out some language from an opinion of the European Court, prompting a collective discussion of what that Court might have meant.