The only thing worse than being deluged with questions at oral argument is being deafened by silence. Thankfully, it’s never been my experience to stand before a mute appeals court, so disinterested in the case before them that not one can be bothered to show some interest.  On the other hand, it’s usually a polite repartee.

But then, I’ve never argued before the Supreme Court of the United States.  From the way Adam Liptak describes it, they’re animals.

If you didn’t know it was a Supreme Court argument, you might think you were seeing a catastrophically overbooked cable television show. The justices of late have been jostling for judicial airtime in a sort of verbal roller derby.

The overbooked cable TV show is a vivid analogy. where mouths do everything possible to talk over, under and around one another so that their sound emits from your speaker to the exclusion of other mouths.  No one gets to complete a sentence, a thought, before another voice slices and dices ideas into worthless slivers.

About 15 minutes in, Justice Stephen G. Breyer tried to ask a question. The effort failed, and Justice Ruth Bader Ginsburg jumped in. A half-hour passed before Justice Breyer had another chance, and now his attempt was interrupted by Justice Antonin Scalia, who said Justice Breyer was asking irrelevant questions.

Then Justice Scalia pressed a point that did not interest Justice Breyer. As the lawyer tried to answer Justice Scalia, Justice Breyer stopped him. “Skip that one,” Justice Breyer said of Justice Scalia’s question.

From the sidelines, it’s amusing to watch justices jostle with each other for position, elbows a-jabbing and arms and legs akimbo as they get hipchecked off the track.  As an advocate, however, this is a nightmare.  Who do you answer?  Who do you ignore as a justice from the middle of the bench tells you not to bother with one on the end?

It’s one thing for justices to be overtly rude with each other.  They have life tenure. You have an hour, tops.

Seth P. Waxman, a former United States solicitor general, was caught in the cross-fire. He was answering a question from Justice Sonia Sotomayor when Chief Justice John G. Roberts tried to interrupt.

“Counsel,” the chief justice said.

Mr. Waxman kept talking, which seemed to irritate the chief justice.

“Counsel!” the chief justice repeated, now in a raised voice. (The exclamation point is in the official transcript.)

Mr. Waxman was contrite. “Mr. Chief Justice, I’m sorry,” he said.

Liptak’s point is that the in-fighting has little to do with the advocate or his position, but the use of the advocate as a prop by justices in their own fight for control.  While he doesn’t say, it seems that the advocate who doesn’t cede control to the justices and allow himself to be played can do his cause some serious damage by his breach of etiquette.  Then again, what sort of etiquette exists when two, up to nine, justices are giving conflicting directions at once, interrupting you and each other and ridiculing, sometimes explicitly, each other’s questions/statements?

And then there are the efforts to screw with an advocate just for fun.

Now that he wears robes, Chief Justice Roberts sometimes shows a mischievous side that he had kept in check as a lawyer. He delights in pointing out internal contradictions in advocates’ positions and in asking them questions with no good answers.

“You try to throw them off balance a little bit,” he told C-Span in 2009.

He certainly did that last month in a case about police questioning of a student, Camreta v. Greene.

The student’s lawyer was about a dozen words into her argument, trying to explain why the case was moot. Chief Justice Roberts interrupted her.

“Then why are you here?” he asked, to laughter. “Why don’t you just go away?”

The amount of time, effort, expense and angst that goes into an appearance before the big bench is extraordinary.  Though I’ve never been there, others I know have, and they spent months in preparation for that one hour of (please, oh please) glory.  Don’t even ask about the psychological and emotional investment of clients in this potentially earth shattering moment.  And then, standing in a brand new white shirt with perfectly pressed dark suit, the CJ makes you look like a monkey for sport.

And there’s nothing you can do about it.

Even if you have a sassy comeback, your mind whirls and you realize that the last thing you really want to do at that instant is out-wise-ass the Chief Justice of the Supreme Court of the United States. 

While Liptak’s Sidebar column does a great job in describing the problem, it offers nothing, neither advice nor commentary, in handling it.  He describes the dynamic as more of a ping-pong match than dialogue or conversation, but nobody standing before the court for oral argument wants to be smashed.

While the political/philosophical lines on the court have become the fodder of constant discussion, the court’s inability to demonstrate a modicum of courtesy within its own ranks, and toward the lawyers before it, seems shockingly wrong.  If anything, the duty should fall on Chief Justice Roberts to control warring factions as well as demonstrate through his own example the courtesy that courts expect of advocates.  He’s not supposed to set himself up as Lord of the Flies, and yet the arguments described by Liptak seem more typical of a school yard fight.

Given what’s at stake in these cases, and the nature of the divisions on the court itself, the justices elbowing each other out of the action hardly seems as amusing as Liptak makes it.  Frankly, the lack of etiquette and courtesy ought to embarrass the justices, and certainly should infuriate those advocates who have put in the months of work for the purpose of doing their best to advocate on behalf of their clients. 

The Supreme Court may be the highest in the land, but this sort of behavior reflects the lowest of courtesy and propriety.  It’s unbecoming and unseemly that they treat each other so poorly and treat advocates as if they are mere collateral damage in their internal power struggle.  They may tell advocates, in effect, to shut up, but someone needs to tell them to grow up.