At Supreme Court, Evolution of Oral Arguments Speaks Volumes

By Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal

Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.

One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.

Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."

It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."

Latest on Universities and Slavery

The following originally published on The Faculty Lounge.

Loyola Law School Professor Yxta Maya Murray's article "From Here I Saw What Happened and I Cried: Carrie Mae Weems' Challenge to the Harvard Archive" has just appeared in volume 8 of Unbound: Harvard Journal of the Legal Left. It tells the really interesting story of a dispute between the artist Carrie Mae Weems and Harvard's Peabody museum over the use of photographs that Louis Agassiz took of enslaved people that he hoped would support the theory of poly-genesis that he embraced (along, I might note with Alabama's Josiah Nott). The article explores Agassiz' purpose in collecting the pictures, their re-discovering in the 1970s at Harvard, and the controversy over their use. While I usually emphasize Harvard's contributions to the anti-slavery cause, this story reminds us again of the connections between Harvard and racial thought in the pre-Civil War era.

Cribbing a little from the article:

In the same year as the enactment of the 1850 Fugitive Slave Act, Agassiz toured South Carolina plantations and decided to defend his polygenesist position by resuming his collecting habit. But this time he would collect live people, not animals, bones, or plants. For this purpose he enlisted Dr. Robert Gibbes, a Morton acolyte, who led Agassiz on a tour of the plantations. On this expedition Agassiz selected Delia, Jack, Renty, Drana, and others for their supposedly instructive appearances. He ordered Gibbes to "gather corroborative photographic evidence" of them, and then retreated to Harvard. Gibbes hired one J.T. Zealy to take nude pictures of them at Zealy's studio in the two attitudes that make up the series, being headshots and full body shots. The record of what happened to the pictures here dwindles. .... [T]he daguerreotypes fade from history until their discovery in the Peabody attic in 1976.

Agassiz would trigger Carrie Mae Weems' show, From Here I Saw What Happened. Weems found much to comment on with photo-metrists like Galton. ... Inspired by Georges Cuvier's 1815 dissection of Sarah Baartman, the original, doomed Hottentot Venus, Galton conducted his own infamous study of yet another "Venus." He encountered this second goddess on his journeys, and measured her every square inch with a sextant. In 1859, when his cousin, Charles Darwin, had published The Origin of Species, Galton's enthusiasm for measuring racial attributes merged with a conviction in White supremacy he felt was assured by Darwin's work. Back in Europe, Galton expanded on his practice of measuring people he believed resided on the lower reaches of the Great Chain of Being.