You may have heard that William and Mary Law School did this thing where they sent a professor into a room with six justices from the Supreme Court of Virginia, asked them questions, taped the conversation, and put the video on the web. I fail to see why this is a big deal. I routinely enter a room with not six but seven justices. And I don’t get to ask the questions–I have to answer them, which is a heckuva lot harder if you think about it. While no one has yet videotaped that process (which is a shame from a business-development perspective), the audio is posted online for all of the world to hear.
And so I ask again: What’s the big deal here?
I’m kidding, of course. The William and Mary video, called “The Art of Appellate Advocacy,” is wonderful. Professor Laura Heymann moderated a two-hour long conversation with then-Chief Justice Kinser and Justices Lemons, Goodwyn, Millette, Mims, and Powell; Justice McClanahan wasn’t available for the taping, and Justice Kelsey was not yet on the Court at the time. The video of the full conversation is available here, and you can also watch various snippets organized by justice or topic area.
The content is fascinating (said the dork who runs an appellate blog.) The various justices discuss their views of judging, the mechanics of reviewing briefs and drafting opinions, their life experiences, and their reactions to oral argument. You can watch the entire two-hour conversation, or you can watch excerpts relating to a particular justice or topic area.
Here are a few of my quick reactions to watching the video:
- It is now my life’s goal to get a beer with S. Bernard Goodwyn.
- For a while there, it seemed like Professor Heymann really wanted to talk about legislating from the bench. Maybe not the most explosive topic, given the modest view that the SCV takes of its role vis-a-vis the legislature. In fact, I think Chief Justice Lemons characterized the Court’s approach as “minimalist.” No Herculean pretensions here.
- Justice Millette identified some areas of law that need to be developed: Defamation in the employment context and multiple causation in asbestos cases. So, free pass at the writ stage if you can find one of those issues in your case?
- Chief Justice Lemons mentioned that he’d like to think that the SCV is a very user friendly court. I’d say yes and no. Yes, in that the justices are very respectful of litigants and positions, both at oral argument and in their written opinions and orders.* This makes oral argument fun, which is a point that I should stop bringing up because it’s bad for business. But there’s a part of the process that it is not fun, and not user friendly, and that is the Court’s extremely strict approach to waiver doctrines and deadlines. Now, I get the arguments in favor of those positions (if you don’t, Justice Kelsey has a great article on them), but here’s my counter: The Fourth Circuit and its staff approach these issues in a much more flexible manner, and the sky hasn’t fallen at 1100 East Main Street. In my experience, the Fourth Circuit is a far more user friendly court than the SCV from the time a case is filed until the start of oral argument. After that, the SCV has a clear edge.
- I like the video’s insight into the mechanics of drafting opinions. The basic process seems to be review briefs –> oral argument –> decision conference –> draft opinion –> circulate draft –> opinion conference after next writ argument –> revise opinion –> hand down decision at the end of the next court week.
- Justices Millette, Mims, McClanahan and Kelsey all had the good sense to attend William and Mary (either undergrad or law school–or, in Justice Millette’s case, both). Tribe pride. Also, a tip of the cap to their fellow alum Jill Ellis ’88, who guides the USWNT into their quarterfinal matchup against China on Friday.
I’ll give you the link to the video again, because it really is worth watching.
* If you try hard enough, you may be able to imagine an alternate universe where justices occasionally behave in a less professional–and sometimes even appalling–way. Or you can just go here: www.scotusblog.com.